Preview
FILED: SUFFOLK COUNTY CLERK 06/01/2022 02:39 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 06/01/2022
EXHIBIT E
FILED: SUFFOLK COUNTY CLERK 02/04/2022
06/01/2022 01:35
02:39 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 23
38 RECEIVED NYSCEF: 02/04/2022
06/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------------------------------------------------------------------X
NICHOLAS DASSLER, REPLY AFFIRMATION
Plaintiff, Index No.: 611178/2021
-against-
DANIEL B. KREMEN and GOLDEN HAWK LLC,
Defendants.
---------------------------------------------------------------------------X
GARY A. PAGLIARELLO, an attorney duly admitted to practice law in the Courts of the
State of New York, affirms the following under the penalties of perjury in accordance with CPLR§
2106:
1. Your affirmant is an attorney with the law firm of ROSENBERG & GLUCK,
L.L.P., attorneys for the Plaintiff herein. I have reviewed the file maintained by this office and as
such, am fully familiar with the facts and circumstances surrounding this action.
2. This Affirmation is submitted in further support of Plaintiff’s motion, pursuant to
CPLR §3212, for summary judgment on the issue of liability. From the outset, the undersigned
notes that the return date for the motion is February 4, 2022 as reflected in a stipulation
previously agreed upon between counsel for the respective parties. A copy of the
aforementioned stipulation is annexed hereto as Exhibit “A”.
3. The undersigned has reviewed Defense counsel’s opposition to the motion and
while counsel should be commended for the desperate efforts that have been advanced to craft an
issue of fact, there is nothing which has been set forth which should convince the Court that
Plaintiff’s motion should not be granted in its entirety. Most respectfully, the affirmation of
1 of 7
FILED: SUFFOLK COUNTY CLERK 02/04/2022
06/01/2022 01:35
02:39 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 23
38 RECEIVED NYSCEF: 02/04/2022
06/01/2022
Defense counsel which suggests that the proof offered by the Plaintiff proof in support of the
motion is somehow deficient or that the motion is premature because depositions have not been
held and that Plaintiff’s affidavit has “left her and the Court in the dark” (Paragraph 19 of
opposition) is unavailing and solely a product of counsel’s refusal to turn on a light and see what
should be clearly seen much like the failure of the Defendant to have observed the Plaintiff’s
vehicle before attempting to move from the left lane and into the travel lane that was lawfully
occupied by the Plaintiff, Nicholas Dassler. None of the case law cited by Defense counsel
supports the conclusion that a sworn affidavit from a party with personal knowledge of the facts
of an accident is insufficient to support a summary judgment motion on the issue of liability.
While counsel seeks to challenge the admissibility of the police report, she chooses to attack the
sworn affidavit of Mr. Dassler as being “bareboned” and “self serving.” At the same time, she
ignores the property damage photographs which reflect the damage to the driver’s side of
Plaintiff’s vehicle which are entirely consistent with the negligent operation of the Defendant’s
vehicle and more particularly, the movement of his truck from the left lane into the right lane.
4. Rather than accept full responsibility for having caused the accident, the
opposition papers seek to distract and deceive the Court by suggesting that the speed of
Plaintiff’s vehicle, the location of his vehicle, when he first observed the Defendant’s vehicle and
“any identifying information as to the tractor trailer that was involved in the accident” somehow
renders Plaintiff’s proof insufficient. It does not and should not be the basis for the Court’s
decision. While the undersigned agrees that summary judgment is a drastic remedy, it remains
the only appropriate form of relief when the Defendant is unable to establish a non-negligent
explanation for an accident. The law is well settled in this regard and need not be reiterated
herein. Defense counsel has not offered anything to rebut the Vehicle & Traffic Law violations
2 of 7
FILED: SUFFOLK COUNTY CLERK 02/04/2022
06/01/2022 01:35
02:39 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 23
38 RECEIVED NYSCEF: 02/04/2022
06/01/2022
which were referenced in the original moving papers nor even attempted to argue that her
client’s operation of his vehicle was anything but a substantial factor in having caused the
accident.
5. While Plaintiff’s counsel would urge that the Court must accept the Defendant’s
affidavit as true, the law does not require that the Court be blind to the fact that even when
viewed in a light most favorable to him, Plaintiff’s entitlement to summary judgment is clear.
MR. KREMEN’s affidavit states that he checked his mirrors, put on his right-hand signal and
moved from the left lane into the left lane which was occupied by the Plaintiff. Even if the Court
credits these statements, they do not create issues of fact or change the fact that the Plaintiff
moved into an adjacent lane of travel without seeing another vehicle. As the Court will note,
there is no indication that the Defendant ever saw the Plaintiff’s vehicle at any time either before
or after moving out of his lane. It is respectfully submitted that the Plaintiff had an absolute right
to continue driving in his lane and to anticipate that the Defendant would do so as well. Viewed
in appropriate context and as a matter of fundamental fairness consistent with applicable law, the
affidavit of MR. KREMEN even when viewed in a light most favorable to him does nothing
whatsoever to defeat the Plaintiff’s motion for summary judgment or raise any genuine issue
with respect to the alleged comparative fault of MR. DASSLER.
6. The balance of Defendant’s opposition is grounded on a claim that the motion is
premature. This Court has confronted this argument on many occasions and consistently found it
to be without merit. The original moving papers anticipated this argument and cited case law
which effectively responds and rebuts the notion that further discovery or depositions are
required before summary judgment on the issue of liability can be awarded in a case where
Defendant has failed to come forward with a non-negligent explanation for an accident or raised
3 of 7
FILED: SUFFOLK COUNTY CLERK 02/04/2022
06/01/2022 01:35
02:39 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 23
38 RECEIVED NYSCEF: 02/04/2022
06/01/2022
a genuine issue of material fact. As stated, an affidavit from a Defendant who acknowledges
moving his vehicle into an adjacent lane without observing another motorist is an admission of
fault and standing alone would support summary judgement, when coupled with the affidavit
from MR. DASSLER and supported by the property damages previously provided, it is clear that
Plaintiff has made out a prima facie entitlement to summary judgment all of the relief previously
requested in the motion presently pending before the Court.
WHEREFORE, it is respectfully requested that this Court issue an Order granting
Summary Judgement on the issue of liability against the Defendant(s) and for such other, further
and different relief as this Court may deem just and proper.
DATED: Holtsville, New York
February 4, 2022
ROSENBERG & GLUCK, LLP
Attorneys for Plaintiff
1176 Portion Road
Holtsville, New York 11742
(631) 451-7900
4 of 7
FILED: SUFFOLK COUNTY CLERK 02/04/2022
06/01/2022 01:35
02:39 PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 23
38 RECEIVED NYSCEF: 02/04/2022
06/01/2022
EXHIBIT A
5 of 7
FILED: SUFFOLK COUNTY CLERK 12/22/2021
02/04/2022
06/01/2022 10:17
01:35
02:39 AM
PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 18
23
38 RECEIVED NYSCEF: 12/22/2021
02/04/2022
06/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-------------------------------------------------------------------------X
NICHOLAS DASSLER,
STIPULATION TO
Plaintiff, ADJOURN MOTION
-against- Index No. 611178/2021
DANIEL B. KREMEN and GOLDEN HAWK LLC,
Defendants.
-------------------------------------------------------------------------X
IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the
respective parties to the above-captioned matter that plaintiff’s motion for Summary Judgment
returnable January 4, 2022, at Supreme Court, County of Suffolk, is hereby adjourned on consent
to February 4, 2022 with opposition due on January 28, 2022.
Dated: New York, New York
December 21, 2021
Jaclyn C. Hosty, Esq.
SMITH MAZURE, P.C. Rosenberg & Gluck, L.L.P.
Attorneys for Defendants 1176 Portion Road
Golden Hawk, LLC and Daniel B. Kremen Holtsville, NY 11742
111 John Street, 20th Floor (631) 451-7900/(631) 451-7955 (F)
New York, NY 10038 Attorney for Plaintiff
(516) 414-7400 Nicholas Dassler
Our File No. NIC-00913
APE/nmo
51
1
6 of 2
7
FILED: SUFFOLK COUNTY CLERK 12/22/2021
02/04/2022
06/01/2022 10:17
01:35
02:39 AM
PM INDEX NO. 611178/2021
NYSCEF DOC. NO. 18
23
38 RECEIVED NYSCEF: 12/22/2021
02/04/2022
06/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
NICHOLAS DASSLER, INDEX NO. 611178/2021
Plaintiff,
-against-
DANIEL B. KREMEN and GOLDEN HAWK LLC,
Defendants.
STIPULATION TO ADJOURN MOTION
SMITH MAZURE, P.C.
Attorneys for Defendants
Golden Hawk, LLC and Daniel B. Kremen
111 John Street, 20th Floor
New York, NY 10038
(516) 414-7400
NIC-00913
CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a
Jaclyn C. Hosty hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.1a, the foregoing Stipulation to Adjourn Motion is not
frivolous nor frivolously presented.
Dated: New York, New York Jaclyn C. Hosty
December 21, 2021
PLEASE TAKE NOTICE
that the within is a true copy of a entered in the office of the clerk of the within named Court on
.
that a of which the within is a true copy will be presented for settlement to the Hon. one of the judges of the within
named Court at , on at 9:30 a.m.
JCH/nmo
51
2
7 of 2
7
Preview
FILED: SUFFOLK COUNTY CLERK 06/01/2022 02:39 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 06/01/2022 EXHIBIT E FILED: SUFFOLK COUNTY CLERK 02/04/2022 06/01/2022 01:35 02:39 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 23 38 RECEIVED NYSCEF: 02/04/2022 06/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------------------------------------------X NICHOLAS DASSLER, REPLY AFFIRMATION Plaintiff, Index No.: 611178/2021 -against- DANIEL B. KREMEN and GOLDEN HAWK LLC, Defendants. ---------------------------------------------------------------------------X GARY A. PAGLIARELLO, an attorney duly admitted to practice law in the Courts of the State of New York, affirms the following under the penalties of perjury in accordance with CPLR§ 2106: 1. Your affirmant is an attorney with the law firm of ROSENBERG & GLUCK, L.L.P., attorneys for the Plaintiff herein. I have reviewed the file maintained by this office and as such, am fully familiar with the facts and circumstances surrounding this action. 2. This Affirmation is submitted in further support of Plaintiff’s motion, pursuant to CPLR §3212, for summary judgment on the issue of liability. From the outset, the undersigned notes that the return date for the motion is February 4, 2022 as reflected in a stipulation previously agreed upon between counsel for the respective parties. A copy of the aforementioned stipulation is annexed hereto as Exhibit “A”. 3. The undersigned has reviewed Defense counsel’s opposition to the motion and while counsel should be commended for the desperate efforts that have been advanced to craft an issue of fact, there is nothing which has been set forth which should convince the Court that Plaintiff’s motion should not be granted in its entirety. Most respectfully, the affirmation of 1 of 7 FILED: SUFFOLK COUNTY CLERK 02/04/2022 06/01/2022 01:35 02:39 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 23 38 RECEIVED NYSCEF: 02/04/2022 06/01/2022 Defense counsel which suggests that the proof offered by the Plaintiff proof in support of the motion is somehow deficient or that the motion is premature because depositions have not been held and that Plaintiff’s affidavit has “left her and the Court in the dark” (Paragraph 19 of opposition) is unavailing and solely a product of counsel’s refusal to turn on a light and see what should be clearly seen much like the failure of the Defendant to have observed the Plaintiff’s vehicle before attempting to move from the left lane and into the travel lane that was lawfully occupied by the Plaintiff, Nicholas Dassler. None of the case law cited by Defense counsel supports the conclusion that a sworn affidavit from a party with personal knowledge of the facts of an accident is insufficient to support a summary judgment motion on the issue of liability. While counsel seeks to challenge the admissibility of the police report, she chooses to attack the sworn affidavit of Mr. Dassler as being “bareboned” and “self serving.” At the same time, she ignores the property damage photographs which reflect the damage to the driver’s side of Plaintiff’s vehicle which are entirely consistent with the negligent operation of the Defendant’s vehicle and more particularly, the movement of his truck from the left lane into the right lane. 4. Rather than accept full responsibility for having caused the accident, the opposition papers seek to distract and deceive the Court by suggesting that the speed of Plaintiff’s vehicle, the location of his vehicle, when he first observed the Defendant’s vehicle and “any identifying information as to the tractor trailer that was involved in the accident” somehow renders Plaintiff’s proof insufficient. It does not and should not be the basis for the Court’s decision. While the undersigned agrees that summary judgment is a drastic remedy, it remains the only appropriate form of relief when the Defendant is unable to establish a non-negligent explanation for an accident. The law is well settled in this regard and need not be reiterated herein. Defense counsel has not offered anything to rebut the Vehicle & Traffic Law violations 2 of 7 FILED: SUFFOLK COUNTY CLERK 02/04/2022 06/01/2022 01:35 02:39 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 23 38 RECEIVED NYSCEF: 02/04/2022 06/01/2022 which were referenced in the original moving papers nor even attempted to argue that her client’s operation of his vehicle was anything but a substantial factor in having caused the accident. 5. While Plaintiff’s counsel would urge that the Court must accept the Defendant’s affidavit as true, the law does not require that the Court be blind to the fact that even when viewed in a light most favorable to him, Plaintiff’s entitlement to summary judgment is clear. MR. KREMEN’s affidavit states that he checked his mirrors, put on his right-hand signal and moved from the left lane into the left lane which was occupied by the Plaintiff. Even if the Court credits these statements, they do not create issues of fact or change the fact that the Plaintiff moved into an adjacent lane of travel without seeing another vehicle. As the Court will note, there is no indication that the Defendant ever saw the Plaintiff’s vehicle at any time either before or after moving out of his lane. It is respectfully submitted that the Plaintiff had an absolute right to continue driving in his lane and to anticipate that the Defendant would do so as well. Viewed in appropriate context and as a matter of fundamental fairness consistent with applicable law, the affidavit of MR. KREMEN even when viewed in a light most favorable to him does nothing whatsoever to defeat the Plaintiff’s motion for summary judgment or raise any genuine issue with respect to the alleged comparative fault of MR. DASSLER. 6. The balance of Defendant’s opposition is grounded on a claim that the motion is premature. This Court has confronted this argument on many occasions and consistently found it to be without merit. The original moving papers anticipated this argument and cited case law which effectively responds and rebuts the notion that further discovery or depositions are required before summary judgment on the issue of liability can be awarded in a case where Defendant has failed to come forward with a non-negligent explanation for an accident or raised 3 of 7 FILED: SUFFOLK COUNTY CLERK 02/04/2022 06/01/2022 01:35 02:39 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 23 38 RECEIVED NYSCEF: 02/04/2022 06/01/2022 a genuine issue of material fact. As stated, an affidavit from a Defendant who acknowledges moving his vehicle into an adjacent lane without observing another motorist is an admission of fault and standing alone would support summary judgement, when coupled with the affidavit from MR. DASSLER and supported by the property damages previously provided, it is clear that Plaintiff has made out a prima facie entitlement to summary judgment all of the relief previously requested in the motion presently pending before the Court. WHEREFORE, it is respectfully requested that this Court issue an Order granting Summary Judgement on the issue of liability against the Defendant(s) and for such other, further and different relief as this Court may deem just and proper. DATED: Holtsville, New York February 4, 2022 ROSENBERG & GLUCK, LLP Attorneys for Plaintiff 1176 Portion Road Holtsville, New York 11742 (631) 451-7900 4 of 7 FILED: SUFFOLK COUNTY CLERK 02/04/2022 06/01/2022 01:35 02:39 PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 23 38 RECEIVED NYSCEF: 02/04/2022 06/01/2022 EXHIBIT A 5 of 7 FILED: SUFFOLK COUNTY CLERK 12/22/2021 02/04/2022 06/01/2022 10:17 01:35 02:39 AM PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 18 23 38 RECEIVED NYSCEF: 12/22/2021 02/04/2022 06/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------------X NICHOLAS DASSLER, STIPULATION TO Plaintiff, ADJOURN MOTION -against- Index No. 611178/2021 DANIEL B. KREMEN and GOLDEN HAWK LLC, Defendants. -------------------------------------------------------------------------X IT IS HEREBY STIPULATED AND AGREED, by and between the attorneys for the respective parties to the above-captioned matter that plaintiff’s motion for Summary Judgment returnable January 4, 2022, at Supreme Court, County of Suffolk, is hereby adjourned on consent to February 4, 2022 with opposition due on January 28, 2022. Dated: New York, New York December 21, 2021 Jaclyn C. Hosty, Esq. SMITH MAZURE, P.C. Rosenberg & Gluck, L.L.P. Attorneys for Defendants 1176 Portion Road Golden Hawk, LLC and Daniel B. Kremen Holtsville, NY 11742 111 John Street, 20th Floor (631) 451-7900/(631) 451-7955 (F) New York, NY 10038 Attorney for Plaintiff (516) 414-7400 Nicholas Dassler Our File No. NIC-00913 APE/nmo 51 1 6 of 2 7 FILED: SUFFOLK COUNTY CLERK 12/22/2021 02/04/2022 06/01/2022 10:17 01:35 02:39 AM PM INDEX NO. 611178/2021 NYSCEF DOC. NO. 18 23 38 RECEIVED NYSCEF: 12/22/2021 02/04/2022 06/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK NICHOLAS DASSLER, INDEX NO. 611178/2021 Plaintiff, -against- DANIEL B. KREMEN and GOLDEN HAWK LLC, Defendants. STIPULATION TO ADJOURN MOTION SMITH MAZURE, P.C. Attorneys for Defendants Golden Hawk, LLC and Daniel B. Kremen 111 John Street, 20th Floor New York, NY 10038 (516) 414-7400 NIC-00913 CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a Jaclyn C. Hosty hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-1.1a, the foregoing Stipulation to Adjourn Motion is not frivolous nor frivolously presented. Dated: New York, New York Jaclyn C. Hosty December 21, 2021 PLEASE TAKE NOTICE that the within is a true copy of a entered in the office of the clerk of the within named Court on . that a of which the within is a true copy will be presented for settlement to the Hon. one of the judges of the within named Court at , on at 9:30 a.m. JCH/nmo 51 2 7 of 2 7