Preview
FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 06/14/2022
Exhibit 5
FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018
NYSCEF
NYSCEF DOC.
DOC.NO. NO. 104
111 RECEIVED
RECEIVED NYSCEF:
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06/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_______---___..-----------------____________----...--_______________Ç
RAUL SANTILLAN,
COPY OF ORDER
Plaintiff, WITH NOTICE
OF ENTRY
- against -
Index No. 519867/18
THE NEW WORLD SERVICE INC. and
MANA M. WAIBA,
Defendants.
..........________-----......._____________..__________________________Ç
PLEASE TAKE NOTICE, that annexed is a true copy of an Order duly entered in the
office of the Clerk of the within named Court on June 8, 2022.
Dated: Forest Hills, New York
June 13, 2022
You ., etc.,
Ro ald W. Ra r/z
LAW OFFICE O NALD W. RAMIREZ
Attorneys for Plaintiff
71"
107-19 Avenue
Forest Hills, New York 11375
(718) 261-6161
TO: BAKER, McEVOY & MOSKOVITS, P.C.
Attorneys for Defendants
One MetroTech Center
Brooklyn, New York 11201
(212) 857-8230
MAILING ADDRESS:
5 Broadway
Freeport, New York 11520
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AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK )
:ss.:
COUNTYOFQUEENS )
WENDY MADDEN, being duly sworn, deposes and says:
I am over 18 years of age, I am not a party to the action, and I reside in Queens County, State
of New York.
On June 13, 2022 I served a true copy of the annexed
COPY OF ORDER WITH NOTICE OF ENTRY
by mailing the same in a sealed envelope, with postage prepaid thereon, in a post office or official
depository of the U.S. Postal Service within the State of New York, addressed to the last known
address of the addressee as indicated below:
BAKER, McEVOY & MOSKOVITS. P.C.
Attorneys for Defendants
5 Broadway
Freeport, New York 11520
WEbTDY M DiiN
Sworn to before me this
13"
day of June, 2022
NO RY PUBLIC
SUZANNE SHEAR
Notmy PubNc, Stateof New York
No. 01SH5083985
Qualified
in Queens County
Commission Empiree Aug.26,
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O
At an IAS Term, Part 81 of the
Supreme Court of the State of New
York, held in and for the County of
Kings, at the Courthouse, at 360
Adams Street, Brooklyn, New York,
On the 26th day of May, 2022.
PRESENT:
CARL J. LANDICINO, J.S.C.
..........--------------------..----------------------..-------------x
RAUL SANTILLAN, Index No.: 519867/2018
Plaintyjs
- against - DECISION AND ORDER
THE NEW WORLD SERVICE INC. and
MANA M. WAIBA,
Motion Sequence #3, #4
Defendants.
-------.. - -- - -.. --- - -------.---- - -- - -Ç
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this
motion:
Papers Numbered
(NYSCEF)
Notice of Motion/Cross Motion and
Affidavits (Affirmations) Annexed..............................................................
53-59, 65-74,
Opposing Affidavits (Affirmations).............................................................
61, 80-93,
Reply Affidavits (Affirmations)...................................................................
76-78, 96-97
Upon the foregoing papers, and after oral argument, the Court finds as follows:
This action concerns a motor vehicle accident that occurred on May 6, 2018. The Plaintiff,
Raul Santillan (hereinafter the "Plaintiff"), claims that he was injured when his vehicle was
involved in a collision with a vehicle owned by Defendant The New World Service, Inc. and
operated by Defendant Mana W. Waiba (hereinafter "the Defendants"). The Plaintiff alleges that
the collision occurred at the intersection of Wyckoff Avenue at or near Eldert Street in Brooldyn,
Defendants'
New York. The Plaintiff claims in his Verified Bill of Particulars (See Motion Exhibit
1
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B, Paragraph 10), that he sustained a number of serious injuries, inter alia, injuries to his cervical
spine and lumbar spine. The Plaintiff also alleges (See Defendant's Motion Exhibit B, Paragraph
20) that he sustained "a medically determined injury or impainnent of a non-permanent nature
which prevented him from performing substantially allof the material acts which constituted his
usual and customary daily activites for not less than 90 days during the 180 days immediately
of."
following the occurrence complained The Plaintiff alleges in his Bill of Particulars that after
confinement to bed for 3 days following the accident he was confined "to home for approximately
thereafter..."
4 months Plaintiff also states in his affidavit that although he was not working prior
to the accident he was caring for his daughter daily, but was unable to continue doing that after
the accident. (See Plaintiff's Affidavit in Opposition to Motion Sequence #4).
The Defendants now move (motion sequence #4) for an order pursuant to CPLR 3212,
granting summary judgment and dismissing the complaint on the ground that none of the injuries
injury"
allegedly sustained by the Plaintiff meet the "serious threshold requirement of Insurance
Law § 5102(d). In support of this application, the Defendants rely on the deposition of the Plaintiff
and the report of Dr. Salvatore Corso.
The Plaintiff opposes the motion and moves (motion sequence #3) for an order pursuant to
CPLR 3212 granting him summary judgment on the issue of liability. In opposition to the
Defendants'
motion, the Plaintiff argues that Defendants have failed to meet their prima facle
evidentiaty showing. In support of his motion for summary judgment, the Plaintiff contends that
summary judgment should be granted because Defendant's vehicle was negligent and the sole
proximate cause of the collision. Specifically, the Plaintiff contends that summary judgment
should be granted given that there ispr /ma facle evidence that "just as I came to the intersection
with Eldest Street and was about to pass the Defendants vehicle, the Defendant's vehicle suddenly,
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without any signal or warning, pulled away from the curb and began a U-tum in the middle
making
vehicle."
of the roadway, striking my (See Plaintiff s Motion, Plaintiff's Affidavit, Paragraph 12).
In support of his application, the Plaintiff relies on his own deposition and a certified Police
Accident Report.
Motions Sequence #4 (Defendants Summary Judgment Motion-insurance Law 6.5102(
In support of their motion (motions sequence #4) the Defendants proffer the affirmed
medical reports from Dr. Salvatore Corso. Dr. Corso conducted an orthopedic medical examination
of Plaintiff on December 5, 2020, approximately two and a half years after the collision at issue.
In his report,Dr. Corso detailed his findings based upon his review of Plaintiff's Bill of Particulars,
his personal observations and objective testing. Dr. Corso performed an orthopedic examination
of the Plaintiffs cervical spine and lumbar spine and found no limitation in the Plaintiff s range of
motion in relation to these areas. Dr. Corso does not state whether he used an instrument for
objective testing.Dr. Corso opined that "[t]he claimant did not sustain any significant or permanent
accident."
injury as a result of the motor vehicle Dr. Corso also stated that "[t]here are no objective
disability." Defendants'
clinical findings indicative of a present (See Motion, Report of Dr. Corso,
Exhibit F).
Turning to the merits of the motion made by the Defendants, the Court finds that the
Defendants have failed to meet their prima facie burden. The Plaintiff was examined by the
defendants'
examining orthopedist Dr. Corso, more than two and a half years after the accident,
and he failed to relate his findings to the 90/180 category of serious injury for the relevant period
of time immediately following the accident. Dr. Corso also failed to address this claim specifically.
See owens-Stephens v. PTM Mgmt. Corp., 191 A.D.3d 691, 137 N.Y.S.3d 734 [2d Dept 2021];
3
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Rouach v. Betts, 71 AD3d 977, 977, 897 N.Y.S.2d 242, 243 [2d Dept 2010]; see also Epstein v.
MTA Long Island Bus, 161 AD3d 821, 823, 75 N.Y.S.3d 532, 534 [2d Dept 2018]; Stead v.
Serrano, 156 AD3d 836, 837, 67 N.Y.S.3d 244 [2d Dept 2017]; Nembhard v.Delatorre, 16 AD3d
390, 791 N.Y.S.2d 144 [2d Dept 2005]; Peplow v. Murat, 304 AD2d 633, 758 N.Y.S.2d 160, 161
[2d Dept 2003]; Frier v. Teague, 288 AD2d 177, 732 N.Y.S.2d 428 [2d Dept 2001].
Itis true that where a Bill of Particulars contains conclusory allegations of a 90/180 claim
and the Deposition and/or affidavit of Plaintiff does not support, or reflects that there is no, such
claim, Defendant movant may utilize those factors in support of its motion. See Master v.
Boiakhtchton, 122 AD3d 589, 590, 996 N.Y.S.2d 116, 117 [2d Dept 2014]; Kuperberg v.
Montalbano, 72 AD3d 903, 904, 899 N.Y.S.2d 344, 345 [2d Dept 2010]; Camacho v. Dwelle, 54
AD3d 706, 863 N.Y.S.2d 754 [2d Dept 2008].
However, in the instant proceeding, the Plaintiff sets forth in his verified Bill of Particulars
that he sustained a medically determined iqjury or impairment of a nonpermanent nature which
prevented her from performing substantially allof the material acts which constituted her usual
and customary daily activities for not less than 90 days during the 180 days immediately following
the accident. The Plaintiff's Bill of Particulars also indicates that "Plaintiff was confmed to bed
for approximately 3 days following the occurrence and to home for approximately 4 months
date."
thereafter, and intermittently thereafter, to (See Defendant's Motion Exhibit B, Paragraph
12). As stated above his affidavit and deposition testimony supports his allegation. As a result, the
Defendants have failed to meet their prima facie burden regarding this claim.See Owens-Stephens
v. PTM Mgmt. Corp., 137 N.Y.S.3d 734, 735 [2d Dept 2021] ; Hall v. Stargot, 187 AD3d 996, 996,
131 N.Y.S.3d 250, 251 [2d Dept 2020]; Che Hong Kim v. Kossof, 90 AD3d 969, 969, 934
N.Y.S.2d 867 [2d Dept 2011).
4
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"Since the moving defendants failed to meet their prima facie burden, itis unnecessary to
determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a
fact."
triable issue of Williams v. Maleachern, 186 AD3d 1462, 1464, 128 N.Y.S.3d 851, 852 [2d
Dept 2020]; see also Rouach v. Betts, 71 AD3d 977, 977, 897 N.Y.S.2d 242, 243 [2d Dept 2010).
Motions Seauence #3(Plaintifs Summarv Judgment Motion)
Turning to the merits of the instant motion, the Court finds that sufficient evidence has
been presented by the Plaintiff to establish his prima facle burden. In support of his application,
the Plaintiff relies primarily on his affidavit and a certified Police Report. The Police Accident
Report reflects that "Driver 1 [Defendant Waiba] states he pulled over to the side of the road to let
a passenger out of the vehicle, and then he pulled off the curb when vehicle 2 [Plaintiffj struck
1."
vehicle The Defendant's statement is admissible because the Police Accident Report is
certified, and Defendant's statement constitutes an admission. See Yassin v. Blackman, 188 AD3d
62, 64, 131 N.Y.S.3d 53, 55 [2d Dept 2020]. Even assuming, arguendo, that the Police Accident
Report was not admissible, the Plaintiff s affidavit is sufficient to show that the Defendant was a
proximate cause of the accident. In his affidavit, Plaintiff states that "[j]ust as I came to the
intersection with Eldert Street and was about to pass the Defendant's vehicle, the Defendant's
vehicle suddenly, without any signal or warning, pulled away from the curb and began making a
vehicle."
U-turn in the middle of the roadway, striking my (See Plaintiff s Motion, Affidavit of
the Plaintiff, Paragraph 6). This statement is sufficient for the Plaintiff to establish a prima facie
showing that the Defendant driver was negligent and a proximate cause of the accident. See
Martinez v.Allen, 163 AD3d 951, 82 N.Y.S.3d 130 [2d Dept 2018).
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..
In opposition to the motion, the Defendant has failed to raise a material issue of fact that
would prevent this Court from the motion. The Defendant does not
granting submit an affidavit or
any other admissible evidence in support of his Plaintiffs'
opposition. As such the motion for
summary judgment on the issue of liability is granted. See Rodriguez v. New
City of York, 31
N.Y.3d 312, 320, 101 N.E.3d 366, 371 [2018]. The movant did not seek to have affirmative
defense(s) relating to culpable conduct dismissed. See Diamond v. 194 AD3d 785
Comins, 784,
[2d Dept 2021].
Based on the foregoing, itis hereby ORDERED as follows:
Plaintiffs'
The motion (motion sequence A13) for judgment on the issue of is
summary liability
granted to the extent that the Defendant driver was negligent and a proximate cause of the
accident. The issue of Plaintiff s comparative negligence, if shall be addressed at trial.
any,
Defendants'
The motion (motion sequence #4) for judgment is denied.
summary
The foregoing constitutes the Decision and Order of the Court.
ENTER:
-
Ca I J. Landicino, J.S.C.
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NYSCEFDOC.DOC.NO. NO.104111 RECEIVED NYSCEF: 06/13/2022
RECEIVEDNYSGEF: 06/14/2022
Index No. 519867/18
SUPREMECOURTOFTHESTATEOFNEWYORK
COUNTY OF KINGS
RAUL SANTILLAN,
Plaintiff,
- against -
THE NEW WORLDSERVICE INC. and MANA M. WAIBA,
Defendants.
COPY OF ORDER WITH NOTICE OF ENTRY
II I AlI I
LAW OFFICE OF RONALD W. RAMIREZ
Attorneys for Plaintiff
107-19 71st Avenue
Forest Hills, New York 11375
Tel. No.: (718) 261-6161
Fax No.: (718) 268-304S
RR @ RWRAMEREZ.COM
CERTIFICATION:
To the best ofthe undersigned's knowledge, information and belief,formed after an inquiry
reasonable under the circumstances, the within document(s) and contentions contained
therein are not frivolous as defined in 22 NYCRR §130-1.1-a.
Dated: Forest Hills, New York
June 13, 2022
R ALD W. R MI
9 af 9
Preview
FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 06/14/2022 Exhibit 5 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF NYSCEF DOC. DOC.NO. NO. 104 111 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/13/2022 06/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _______---___..-----------------____________----...--_______________Ç RAUL SANTILLAN, COPY OF ORDER Plaintiff, WITH NOTICE OF ENTRY - against - Index No. 519867/18 THE NEW WORLD SERVICE INC. and MANA M. WAIBA, Defendants. ..........________-----......._____________..__________________________Ç PLEASE TAKE NOTICE, that annexed is a true copy of an Order duly entered in the office of the Clerk of the within named Court on June 8, 2022. Dated: Forest Hills, New York June 13, 2022 You ., etc., Ro ald W. Ra r/z LAW OFFICE O NALD W. RAMIREZ Attorneys for Plaintiff 71" 107-19 Avenue Forest Hills, New York 11375 (718) 261-6161 TO: BAKER, McEVOY & MOSKOVITS, P.C. Attorneys for Defendants One MetroTech Center Brooklyn, New York 11201 (212) 857-8230 MAILING ADDRESS: 5 Broadway Freeport, New York 11520 1 of 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF NYSCEFDOC.DOC.NO. NO.104111 RECEIVED RECEIVEDNYSCEF: NYSCEF: 06/13/2022 06/14/2022 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) :ss.: COUNTYOFQUEENS ) WENDY MADDEN, being duly sworn, deposes and says: I am over 18 years of age, I am not a party to the action, and I reside in Queens County, State of New York. On June 13, 2022 I served a true copy of the annexed COPY OF ORDER WITH NOTICE OF ENTRY by mailing the same in a sealed envelope, with postage prepaid thereon, in a post office or official depository of the U.S. Postal Service within the State of New York, addressed to the last known address of the addressee as indicated below: BAKER, McEVOY & MOSKOVITS. P.C. Attorneys for Defendants 5 Broadway Freeport, New York 11520 WEbTDY M DiiN Sworn to before me this 13" day of June, 2022 NO RY PUBLIC SUZANNE SHEAR Notmy PubNc, Stateof New York No. 01SH5083985 Qualified in Queens County Commission Empiree Aug.26, 2 of 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 1.t"El5f..IfUC NYSCEF DOC. KTÑG NO. 111 OUNTY CLERK 0 6(O8(2022) RECE W RECEIVEDNYNYSCEF: C&fl9tRN/ GO22 06/14/2022 f' NY SCR DOC . NO. 103 RECE IVE D NY SCE F: 06/10/2022 O At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, On the 26th day of May, 2022. PRESENT: CARL J. LANDICINO, J.S.C. ..........--------------------..----------------------..-------------x RAUL SANTILLAN, Index No.: 519867/2018 Plaintyjs - against - DECISION AND ORDER THE NEW WORLD SERVICE INC. and MANA M. WAIBA, Motion Sequence #3, #4 Defendants. -------.. - -- - -.. --- - -------.---- - -- - -Ç Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered (NYSCEF) Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed.............................................................. 53-59, 65-74, Opposing Affidavits (Affirmations)............................................................. 61, 80-93, Reply Affidavits (Affirmations)................................................................... 76-78, 96-97 Upon the foregoing papers, and after oral argument, the Court finds as follows: This action concerns a motor vehicle accident that occurred on May 6, 2018. The Plaintiff, Raul Santillan (hereinafter the "Plaintiff"), claims that he was injured when his vehicle was involved in a collision with a vehicle owned by Defendant The New World Service, Inc. and operated by Defendant Mana W. Waiba (hereinafter "the Defendants"). The Plaintiff alleges that the collision occurred at the intersection of Wyckoff Avenue at or near Eldert Street in Brooldyn, Defendants' New York. The Plaintiff claims in his Verified Bill of Particulars (See Motion Exhibit 1 L o f 6 3 cf 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 111 RECE RECEIVED C NYSCEF: 9 022 06/14/2022 ffitfU°KfÑG OUNTY CLERK 0 6 / 08 /2022| NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 06/10/2022 B, Paragraph 10), that he sustained a number of serious injuries, inter alia, injuries to his cervical spine and lumbar spine. The Plaintiff also alleges (See Defendant's Motion Exhibit B, Paragraph 20) that he sustained "a medically determined injury or impainnent of a non-permanent nature which prevented him from performing substantially allof the material acts which constituted his usual and customary daily activites for not less than 90 days during the 180 days immediately of." following the occurrence complained The Plaintiff alleges in his Bill of Particulars that after confinement to bed for 3 days following the accident he was confined "to home for approximately thereafter..." 4 months Plaintiff also states in his affidavit that although he was not working prior to the accident he was caring for his daughter daily, but was unable to continue doing that after the accident. (See Plaintiff's Affidavit in Opposition to Motion Sequence #4). The Defendants now move (motion sequence #4) for an order pursuant to CPLR 3212, granting summary judgment and dismissing the complaint on the ground that none of the injuries injury" allegedly sustained by the Plaintiff meet the "serious threshold requirement of Insurance Law § 5102(d). In support of this application, the Defendants rely on the deposition of the Plaintiff and the report of Dr. Salvatore Corso. The Plaintiff opposes the motion and moves (motion sequence #3) for an order pursuant to CPLR 3212 granting him summary judgment on the issue of liability. In opposition to the Defendants' motion, the Plaintiff argues that Defendants have failed to meet their prima facle evidentiaty showing. In support of his motion for summary judgment, the Plaintiff contends that summary judgment should be granted because Defendant's vehicle was negligent and the sole proximate cause of the collision. Specifically, the Plaintiff contends that summary judgment should be granted given that there ispr /ma facle evidence that "just as I came to the intersection with Eldest Street and was about to pass the Defendants vehicle, the Defendant's vehicle suddenly, 2 2 of 6 4 of 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF DOC. Gs-Ù 111 NO. RECEIVED RECE1TA sktRS.CIFl:98Qi0//k%f8022 NYSCEF: 06/14/2022 OUNTY CLERK 0 6 / 08 / 2022) NYSCÈF DOC. NO. 103 RECEIVED NYSCEF : 06/10/2022 without any signal or warning, pulled away from the curb and began a U-tum in the middle making vehicle." of the roadway, striking my (See Plaintiff s Motion, Plaintiff's Affidavit, Paragraph 12). In support of his application, the Plaintiff relies on his own deposition and a certified Police Accident Report. Motions Sequence #4 (Defendants Summary Judgment Motion-insurance Law 6.5102( In support of their motion (motions sequence #4) the Defendants proffer the affirmed medical reports from Dr. Salvatore Corso. Dr. Corso conducted an orthopedic medical examination of Plaintiff on December 5, 2020, approximately two and a half years after the collision at issue. In his report,Dr. Corso detailed his findings based upon his review of Plaintiff's Bill of Particulars, his personal observations and objective testing. Dr. Corso performed an orthopedic examination of the Plaintiffs cervical spine and lumbar spine and found no limitation in the Plaintiff s range of motion in relation to these areas. Dr. Corso does not state whether he used an instrument for objective testing.Dr. Corso opined that "[t]he claimant did not sustain any significant or permanent accident." injury as a result of the motor vehicle Dr. Corso also stated that "[t]here are no objective disability." Defendants' clinical findings indicative of a present (See Motion, Report of Dr. Corso, Exhibit F). Turning to the merits of the motion made by the Defendants, the Court finds that the Defendants have failed to meet their prima facie burden. The Plaintiff was examined by the defendants' examining orthopedist Dr. Corso, more than two and a half years after the accident, and he failed to relate his findings to the 90/180 category of serious injury for the relevant period of time immediately following the accident. Dr. Corso also failed to address this claim specifically. See owens-Stephens v. PTM Mgmt. Corp., 191 A.D.3d 691, 137 N.Y.S.3d 734 [2d Dept 2021]; 3 3 of 6 5 of 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF DOC. SFTSEDPK1"NGs NO. U 111 tOUNTY CLERK 0 6(08 RECEIVEDt RECEM§ NYSCEF: 022 9,CBRB8%f7//06/14/2022 ¾ ( /2022) NYSCEF DOC. NO. 103 RECEIVED NYSCEE: 06/10/2022 Rouach v. Betts, 71 AD3d 977, 977, 897 N.Y.S.2d 242, 243 [2d Dept 2010]; see also Epstein v. MTA Long Island Bus, 161 AD3d 821, 823, 75 N.Y.S.3d 532, 534 [2d Dept 2018]; Stead v. Serrano, 156 AD3d 836, 837, 67 N.Y.S.3d 244 [2d Dept 2017]; Nembhard v.Delatorre, 16 AD3d 390, 791 N.Y.S.2d 144 [2d Dept 2005]; Peplow v. Murat, 304 AD2d 633, 758 N.Y.S.2d 160, 161 [2d Dept 2003]; Frier v. Teague, 288 AD2d 177, 732 N.Y.S.2d 428 [2d Dept 2001]. Itis true that where a Bill of Particulars contains conclusory allegations of a 90/180 claim and the Deposition and/or affidavit of Plaintiff does not support, or reflects that there is no, such claim, Defendant movant may utilize those factors in support of its motion. See Master v. Boiakhtchton, 122 AD3d 589, 590, 996 N.Y.S.2d 116, 117 [2d Dept 2014]; Kuperberg v. Montalbano, 72 AD3d 903, 904, 899 N.Y.S.2d 344, 345 [2d Dept 2010]; Camacho v. Dwelle, 54 AD3d 706, 863 N.Y.S.2d 754 [2d Dept 2008]. However, in the instant proceeding, the Plaintiff sets forth in his verified Bill of Particulars that he sustained a medically determined iqjury or impairment of a nonpermanent nature which prevented her from performing substantially allof the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. The Plaintiff's Bill of Particulars also indicates that "Plaintiff was confmed to bed for approximately 3 days following the occurrence and to home for approximately 4 months date." thereafter, and intermittently thereafter, to (See Defendant's Motion Exhibit B, Paragraph 12). As stated above his affidavit and deposition testimony supports his allegation. As a result, the Defendants have failed to meet their prima facie burden regarding this claim.See Owens-Stephens v. PTM Mgmt. Corp., 137 N.Y.S.3d 734, 735 [2d Dept 2021] ; Hall v. Stargot, 187 AD3d 996, 996, 131 N.Y.S.3d 250, 251 [2d Dept 2020]; Che Hong Kim v. Kossof, 90 AD3d 969, 969, 934 N.Y.S.2d 867 [2d Dept 2011). 4 4 of 6 6 of 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 FRHiBMM47é RECEggUt[k RECEIVEDEjNYSCEF: 022 NYSCEF DOC. NO.E NaT"IIIM 111 "T:fM:YMM 06/14/2022 (CFÂ98%Ó/20 f NYSCÉP DOC. NO. 103 RECEIVED NYSCEF : 0 6/ 10 / 2 0 2 2 "Since the moving defendants failed to meet their prima facie burden, itis unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a fact." triable issue of Williams v. Maleachern, 186 AD3d 1462, 1464, 128 N.Y.S.3d 851, 852 [2d Dept 2020]; see also Rouach v. Betts, 71 AD3d 977, 977, 897 N.Y.S.2d 242, 243 [2d Dept 2010). Motions Seauence #3(Plaintifs Summarv Judgment Motion) Turning to the merits of the instant motion, the Court finds that sufficient evidence has been presented by the Plaintiff to establish his prima facle burden. In support of his application, the Plaintiff relies primarily on his affidavit and a certified Police Report. The Police Accident Report reflects that "Driver 1 [Defendant Waiba] states he pulled over to the side of the road to let a passenger out of the vehicle, and then he pulled off the curb when vehicle 2 [Plaintiffj struck 1." vehicle The Defendant's statement is admissible because the Police Accident Report is certified, and Defendant's statement constitutes an admission. See Yassin v. Blackman, 188 AD3d 62, 64, 131 N.Y.S.3d 53, 55 [2d Dept 2020]. Even assuming, arguendo, that the Police Accident Report was not admissible, the Plaintiff s affidavit is sufficient to show that the Defendant was a proximate cause of the accident. In his affidavit, Plaintiff states that "[j]ust as I came to the intersection with Eldert Street and was about to pass the Defendant's vehicle, the Defendant's vehicle suddenly, without any signal or warning, pulled away from the curb and began making a vehicle." U-turn in the middle of the roadway, striking my (See Plaintiff s Motion, Affidavit of the Plaintiff, Paragraph 6). This statement is sufficient for the Plaintiff to establish a prima facie showing that the Defendant driver was negligent and a proximate cause of the accident. See Martinez v.Allen, 163 AD3d 951, 82 N.Y.S.3d 130 [2d Dept 2018). 5 5 Of 6 7 of 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF 19138 DOC. P'KTNGSNO. 111 COUNTY RECE RECEIVED NYSCEF: CM98 06/14/2022022 CLERK 06(08(2022| //) NYSCt,P DOC. NG. 103 RECEIVED NYSCEF: 06/10/2022 .. In opposition to the motion, the Defendant has failed to raise a material issue of fact that would prevent this Court from the motion. The Defendant does not granting submit an affidavit or any other admissible evidence in support of his Plaintiffs' opposition. As such the motion for summary judgment on the issue of liability is granted. See Rodriguez v. New City of York, 31 N.Y.3d 312, 320, 101 N.E.3d 366, 371 [2018]. The movant did not seek to have affirmative defense(s) relating to culpable conduct dismissed. See Diamond v. 194 AD3d 785 Comins, 784, [2d Dept 2021]. Based on the foregoing, itis hereby ORDERED as follows: Plaintiffs' The motion (motion sequence A13) for judgment on the issue of is summary liability granted to the extent that the Defendant driver was negligent and a proximate cause of the accident. The issue of Plaintiff s comparative negligence, if shall be addressed at trial. any, Defendants' The motion (motion sequence #4) for judgment is denied. summary The foregoing constitutes the Decision and Order of the Court. ENTER: - Ca I J. Landicino, J.S.C. 8 of 9 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF NYSCEFDOC.DOC.NO. NO.104111 RECEIVED NYSCEF: 06/13/2022 RECEIVEDNYSGEF: 06/14/2022 Index No. 519867/18 SUPREMECOURTOFTHESTATEOFNEWYORK COUNTY OF KINGS RAUL SANTILLAN, Plaintiff, - against - THE NEW WORLDSERVICE INC. and MANA M. WAIBA, Defendants. COPY OF ORDER WITH NOTICE OF ENTRY II I AlI I LAW OFFICE OF RONALD W. RAMIREZ Attorneys for Plaintiff 107-19 71st Avenue Forest Hills, New York 11375 Tel. No.: (718) 261-6161 Fax No.: (718) 268-304S RR @ RWRAMEREZ.COM CERTIFICATION: To the best ofthe undersigned's knowledge, information and belief,formed after an inquiry reasonable under the circumstances, the within document(s) and contentions contained therein are not frivolous as defined in 22 NYCRR §130-1.1-a. Dated: Forest Hills, New York June 13, 2022 R ALD W. R MI 9 af 9