Preview
FILED: KINGS COUNTY CLERK 08/23/2021 10:28 AM INDEX NO. 519867/2018
NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 08/23/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------X INDEX NO.: 519867/2018
RAUL SANTILLAN,
Plaintiff,
AFFIRMATION IN
- against - OPPOSITION
THE NEW WORLD SERVICE INC. and MANA M. WAIBA,
FILE NO.: 1027151
Defendants.
----------------------------------------------------------------------X
YOUNG CHOO, an attorney duly admitted to practice law before the Courts of the State
of New York, affirms the following to be true under the penalties of perjury pursuant to CPLR §
2106:
1. I am associated with BAKER, McEVOY & MOSKOVITS, P.C., attorneys for the
defendants, THE NEW WORLD SERVICES INC. and MANA M. WAIBA, and as such am fully
familiar with the facts and circumstances of this action as set forth, based upon the contents of the
file maintained in this office.
2. I respectfully make this Affirmation, upon information and belief, in opposition to
Plaintiff’s Motion seeking an Order pursuant to CPLR § 3212, granting summary judgment in their
favor on the issue of liability.
PLAINTIFF FAILED TO ESTABLISH PRIMA A PRIMA FACIE SHOWING OF
ENTITLEMENT TO SUMMARY JUDGMENT
3. A movant seeking summary judgment is required to make a prima facie showing
not only that the nonmoving party was negligent, but that he was free from comparative fault,
and since there can be more than one proximate cause of an accident, the motion will be denied if
triable issues of fact are raised as to what actions the movant took in order to avoid the accident.
See Smalls v. Adams, 118 AD3d 693 (2nd Dept. 2014); Bell v. Angah, 146 AD3d 734 (1st Dept.
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2017); Parris v. Gonzalez-Martinez, 129 AD3d 519 (1st Dept. 2015).
4. Where genuine issues of material fact exist as to what actions the movant took in
order to avoid the collision, and has failed to meet his prima facie burden of showing that the
nonmoving party was the sole proximate cause of the accident, summary judgment is precluded
regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr.,
64 NY2d 851, 487 NYS2d 316 (1985); Tringali v. Sieber, 115 AD3d 934 (2nd Dept. 2014); Skoczek
v. Delgado, 115 AD3d 844 (2nd Dept. 2014); Binetti v. Infante, 38 AD3d 210 (1st Dept. 2007).
5. There can be more than one proximate cause of an accident, and the allegation that
a party “ran” the stop sign, did not cautiously enter the intersection, made an illegal U-turn, or
violated another provision of the Vehicle and Traffic Law, would not preclude a finding that
comparative negligence by another party contributed to the accident. See Caruso v. Gnatjuks, 119
AD3d 509 (2nd Dept. 2014); Luke v. McFadden, 119 AD3d 533 (2nd Dept. 2014); Rodriguez v.
CMB Collision Inc., 112 AD3d 473 (1st Dept. 2013); Stephens v. Elrac, Inc., 100 AD3d 511 (1st
Dept. 2012).
6. Summary judgment is a drastic remedy because it deprives the litigants of their day
in Court and it should only be employed when there is no doubt as to the absence of a triable
issue of fact. Ugarriza v. Schmeider, 46 N.Y.2d 471 (1979).
7. On a motion for summary judgment, the Courts of this state engage in issue finding
and not issue determining. Thus, where there appears to be a dispute as to an issue of material fact,
summary judgment is not granted and a plenary trial is ordered. Goodman v. Goodman, 62 A.D.2d
939 (1st Dep’t 1978).
8. Furthermore, movant has the burden to offer evidence sufficient to eliminate any
material issue of fact. Summary judgment will be denied, even in the absence of opposing papers,
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where Plaintiff's moving affidavits fail to meet the stringent evidentiary burden placed upon
movant. Falk v. Goodman, 7 N.Y.2d 87, 91 (1959); Coley v. Michelin Tire Corporation, 99
A.D.2d 795, 472 N.Y.S.2d 125 (2nd Dep’t 1984) ("the burden of the movant to produce evidentiary
facts is greater than on the opponent"); Cugini v. System Lumber Co., Inc., 111 A.D.2d 114, 489
N.Y.S.2d 492 (1st Dep’t 1981); Ahl v. Martin, 82 A.D.2d 938, 440 N.Y.S.2d 748 (3d Dep’t1981).
WHEREFORE, for all the reasons aforesaid, Defendants, THE NEW WORLD
SERVICE INC. and MANA M. WAIBA, respectfully requests that this Court issue an Order
denying Plaintiff’s Motion and granting such other and further relief as to this Court may seem
just and proper.
Dated: Brooklyn, New York
August 23, 2021
BAKER, McEVOY & MOSKOVITS, P.C.
Young Choo, Esq.
______________________________
YOUNG CHOO, ESQ.
Attorneys for Defendants
THE NEW WORLD SERVICE INC. and
MANA M. WAIBA
1 Metrotech Center
Brooklyn, New York 11201
(212) 497-1685
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Index No.: 519867/2018
SUPREME COURT OF THE CITY OF NEW YORK
COUNTY OF KINGS
_____________________________________________________
RAUL SANTILLAN,
PLAINTIFF,
v.
THE NEW WORLD SERVICE INC. and
MANA M. WAIBA,
DEFENDANTS.
_______________________________________________________
AFFIRMATION IN OPPOSITION
_______________________________________________________
BAKER, McEVOY & MOSKOVITS, P.C.
1 Metrotech Center
Brooklyn, New York, 11201
(212) 857-8230
_______________________________________________________
To:
Attorney(s) for:
_______________________________________________________
Service of a copy of the within
is hereby admitted.
Dated,
..........................................................................................................
Attorney(s) for
_______________________________________________________
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Preview
FILED: KINGS COUNTY CLERK 08/23/2021 10:28 AM INDEX NO. 519867/2018 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 08/23/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X INDEX NO.: 519867/2018 RAUL SANTILLAN, Plaintiff, AFFIRMATION IN - against - OPPOSITION THE NEW WORLD SERVICE INC. and MANA M. WAIBA, FILE NO.: 1027151 Defendants. ----------------------------------------------------------------------X YOUNG CHOO, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury pursuant to CPLR § 2106: 1. I am associated with BAKER, McEVOY & MOSKOVITS, P.C., attorneys for the defendants, THE NEW WORLD SERVICES INC. and MANA M. WAIBA, and as such am fully familiar with the facts and circumstances of this action as set forth, based upon the contents of the file maintained in this office. 2. I respectfully make this Affirmation, upon information and belief, in opposition to Plaintiff’s Motion seeking an Order pursuant to CPLR § 3212, granting summary judgment in their favor on the issue of liability. PLAINTIFF FAILED TO ESTABLISH PRIMA A PRIMA FACIE SHOWING OF ENTITLEMENT TO SUMMARY JUDGMENT 3. A movant seeking summary judgment is required to make a prima facie showing not only that the nonmoving party was negligent, but that he was free from comparative fault, and since there can be more than one proximate cause of an accident, the motion will be denied if triable issues of fact are raised as to what actions the movant took in order to avoid the accident. See Smalls v. Adams, 118 AD3d 693 (2nd Dept. 2014); Bell v. Angah, 146 AD3d 734 (1st Dept. 1 of 4 FILED: KINGS COUNTY CLERK 08/23/2021 10:28 AM INDEX NO. 519867/2018 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 08/23/2021 2017); Parris v. Gonzalez-Martinez, 129 AD3d 519 (1st Dept. 2015). 4. Where genuine issues of material fact exist as to what actions the movant took in order to avoid the collision, and has failed to meet his prima facie burden of showing that the nonmoving party was the sole proximate cause of the accident, summary judgment is precluded regardless of the sufficiency of the opposing papers. See Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 (1985); Tringali v. Sieber, 115 AD3d 934 (2nd Dept. 2014); Skoczek v. Delgado, 115 AD3d 844 (2nd Dept. 2014); Binetti v. Infante, 38 AD3d 210 (1st Dept. 2007). 5. There can be more than one proximate cause of an accident, and the allegation that a party “ran” the stop sign, did not cautiously enter the intersection, made an illegal U-turn, or violated another provision of the Vehicle and Traffic Law, would not preclude a finding that comparative negligence by another party contributed to the accident. See Caruso v. Gnatjuks, 119 AD3d 509 (2nd Dept. 2014); Luke v. McFadden, 119 AD3d 533 (2nd Dept. 2014); Rodriguez v. CMB Collision Inc., 112 AD3d 473 (1st Dept. 2013); Stephens v. Elrac, Inc., 100 AD3d 511 (1st Dept. 2012). 6. Summary judgment is a drastic remedy because it deprives the litigants of their day in Court and it should only be employed when there is no doubt as to the absence of a triable issue of fact. Ugarriza v. Schmeider, 46 N.Y.2d 471 (1979). 7. On a motion for summary judgment, the Courts of this state engage in issue finding and not issue determining. Thus, where there appears to be a dispute as to an issue of material fact, summary judgment is not granted and a plenary trial is ordered. Goodman v. Goodman, 62 A.D.2d 939 (1st Dep’t 1978). 8. Furthermore, movant has the burden to offer evidence sufficient to eliminate any material issue of fact. Summary judgment will be denied, even in the absence of opposing papers, 2 of 4 FILED: KINGS COUNTY CLERK 08/23/2021 10:28 AM INDEX NO. 519867/2018 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 08/23/2021 where Plaintiff's moving affidavits fail to meet the stringent evidentiary burden placed upon movant. Falk v. Goodman, 7 N.Y.2d 87, 91 (1959); Coley v. Michelin Tire Corporation, 99 A.D.2d 795, 472 N.Y.S.2d 125 (2nd Dep’t 1984) ("the burden of the movant to produce evidentiary facts is greater than on the opponent"); Cugini v. System Lumber Co., Inc., 111 A.D.2d 114, 489 N.Y.S.2d 492 (1st Dep’t 1981); Ahl v. Martin, 82 A.D.2d 938, 440 N.Y.S.2d 748 (3d Dep’t1981). WHEREFORE, for all the reasons aforesaid, Defendants, THE NEW WORLD SERVICE INC. and MANA M. WAIBA, respectfully requests that this Court issue an Order denying Plaintiff’s Motion and granting such other and further relief as to this Court may seem just and proper. Dated: Brooklyn, New York August 23, 2021 BAKER, McEVOY & MOSKOVITS, P.C. Young Choo, Esq. ______________________________ YOUNG CHOO, ESQ. Attorneys for Defendants THE NEW WORLD SERVICE INC. and MANA M. WAIBA 1 Metrotech Center Brooklyn, New York 11201 (212) 497-1685 3 of 4 FILED: KINGS COUNTY CLERK 08/23/2021 10:28 AM INDEX NO. 519867/2018 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 08/23/2021 Index No.: 519867/2018 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF KINGS _____________________________________________________ RAUL SANTILLAN, PLAINTIFF, v. THE NEW WORLD SERVICE INC. and MANA M. WAIBA, DEFENDANTS. _______________________________________________________ AFFIRMATION IN OPPOSITION _______________________________________________________ BAKER, McEVOY & MOSKOVITS, P.C. 1 Metrotech Center Brooklyn, New York, 11201 (212) 857-8230 _______________________________________________________ To: Attorney(s) for: _______________________________________________________ Service of a copy of the within is hereby admitted. Dated, .......................................................................................................... Attorney(s) for _______________________________________________________ 4 of 4