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FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017
NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------X
JOSE GONZALES, AFFIRMATION IN SUPPORT
Plaintiff, Action #1
Index No. 154796/2017
-against- Hon. Adam Silvera
MICHELE A. BEACH, FREDY R. URGILES and
JALKH SALIM,
Defendants
____________ X
SALIM JALAKH and HIND ALAEDDIN ,
Plaintiffs, Action #2
Index No. 150911/2018
-against-
MICHELE A. BEACH, FREDY R. URGILES, JOSE A.
GONZALES, JOHN DOES I-X (said names being
fictitious, true names unknown), and/or ABC CORP.
I-X (said names being fictitious, true names unknown),
Defendants.
------------------------- ---------------------X
I, GERARD FERRARA, an attorney duly licensed to practice law in the Courts
of the State of New York, under penalty of perjury, affirms:
1. I am associated with the law firm of SCAHILL LAW GROUP, P.C.,
counsel for the Defendant, FREDY R. URGILES, and as such am fully familiar with
the facts, circumstances and pleadings in the above captioned matter.
2. I submit this affirmation in support of the pending summary
judgment motion on the basis that the Defendant, FREDY R. URGILES, was not
negligent and did not breach any duty owed to the Plaintiffs.
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3. This lawsuit for personal injuries arose out of a five (5) vehicle
accident that happened on April 8, 2017 on the New Jersey Turnpike.
4. The movant Defendant URGILES vehicle was travelling in the left
southbound lane of the New Turnpike. The Plaintiff in Action #1/Co-
Jersey
Defendant in Action #2, GONZALES vehicle, the Co-Defendant in Actions #1 and
2, JALAKH vehicle, and non-party PROVOST vehicle, were all also travelling
southboundon the New Jersey Turnpike. Of these four (4) vehicles, the movant
'lead'
URGILES vehicle was the vehicle.
5. The vehicle of Co-Defendant in Actions #1 and 2, MICHELE A.
BEACH, was travelling northbound
6. The accident occurred when the BEACH vehicle. still travelling
noithbound. suddenly entered the southbound lanes of New Jersev Turnoike,
travelling the wrong way, head-on into oncoming traffic.
7. When faced with the sudden emergency of the oncoming BEACH
vehicle, the movant Defendant URGILES reasonable responded by swerving to
avoid a head-on collision. The oncoming BEACH vehicle side-swiped the URGILES
vehicle, and then ccñtiñued northbound in the southbound lanes, and struck the
GONZALES vehicle. As a result of the impact from the BEACH VEHICLE, the
GONZALES vehicle spun, was struck by the JAl.AKH vehicle, and then struck the
concrete barrier. The BEACH vehicle continued, and struck the non-party
PROVOST vehicle, and then struck the concrete barrier.
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8. The so/e involvement of the movant URGILES vehicle in
this accident, was to be struck by the oncoming BEACH vehicle which
was travelling the wrong way in the southbound lanes.
9. The URGILES vehicle neither made any contact, nor caused
a_rty contact, to any other vehicles.
10. A copy of the Police Accident Report is attached hereto as Exhibit
A.
11. Police Accident Reports are consistently considered evidence and
admissible ( see Scott v Kass, 48 AD3d 785 [2d Dept 2008]; Guevara v Zaharakis,
303 AD2d 555 [2d Dept 2003]; Ferrara v Poranski, 88 AD2d [2d Dept 1982]).
12. In Memenza v Cole, 131 AD3d 1020 (2d Dept 2015), the Court
held:
"Pursuant to CPLR 4518(a), a police accident report is admissible as
a business record so long as the report is made based upon the
officer's personal observations and while carrying out police duties
(see Matter of Chu Man Woo v. Qiong Yun Xi, 106 AD3d 818 [];
Holliday v. Hudson Armored Car & Courier Serv., 301 AD2d 392 [];
Yeargans v. Yeargans, 24 AD2d 280 []. If information contained in
a police accident report was not based upon the police officer's
personal observations, it may nevertheless be admissible as a
recordi
business "if the person giving the police officer the
information contained in the report was under a business duty to
her]"
relate the facts to him [or ( Stevens v. Kirby, 86 AD2d 391 [];
see Johnson v. Lutz, 253 NY 124 []; Donohue v. Losito, 141 AD2d
691 []; Murray v. Donlan, 77 AD2d at 342 []; Toll v. State of New
[])."
York, 32 AD2d 47
1
Pursuant to Vehicle and Traffic Law § 600, a driver is under such business duty to report a
motor vehicle accident.
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13. "The police officer who prepared the report was acting within the
scope of his duty in recording the [driver's] statement... the statement is
party."
admissible as an admission of a (Jackson v Donien Trust, 103 AD3s 851,
852 [2d Dept 2013]).
14. Statements contained in a Police Accident Report based on present
sense impressions and diagrams and other entries made by a responding police
officer determining how vehicles collided with each other at the scene of the
accident are admissible for the purposes of establishing a party's liability (see
Scott v Kass, supra; Irizarry v Motor Vehicle Indemnification Corp., 287 AD2d
716 [2d Dept 2001]; Exantus v Town of Ossining, 266 AD2d 502 [2d Dept
1999]).
15. The Police Accident Report notes (see, Exhibit A):
"On Saturday April 8, 2017 at approximately 0600 hours, a five [5]
car motor vehicle crash occurred on the New Jersey Turnpike
western spur on the south (NSW) roadway MP 115.1 in Carlstadt
Boro, Bergen County, N1..
[Co-Defendant BEACH] was travê|||ng the wrong w_a_y, going
northbound in the southbound lanes. [.Coo.-
Subsequently,
Defendant BEACHl__sideswiped Fthe URGILES vehiclel,
w_hich was travelling south in the left lane. [The BEACH
vehiclel continued travelling northbound and impacted
[the GONZALES vehicle). As a result of the impact Ffrom
the BEACH vehiclel, [the GONZALES vehiclel rotated and
was impacted by [the JALAKH vehicleL which was travelling
southbound. [The GONZALES vehicle] impacted the concrete
barrier wall to the right, crossed the roadway to the left, and
impacted the center concrete traffic barrier. [The BEACH vehicle]
continued travelling northbound in the southbound lanes and
sideswiped the [PROVOST vehicle]. [The BEACH vehicle] continued
travelling northbound in the southbound lanes and impacted the
concrete traffic barrier before coming to a final uncontrolled rest.
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16. Accordingly, summary judgment should be granted, and the
complaint and any and all cross claims in Actions #1 and 2 dismissed as against
the movant Defendant, FREDY R. URGILES.
17. The Plaintiff in Action #1, JOSE GONZALES, commenced Action #1
by the filing of a summons and complaint on or about May 24, 2017. On or
about July 13, 2017, an answer was served on behalf of the movant Defendant,
FREDY R. URGILES, along with a third-party summons and complaint as against
JALAKH SALIM. On or about August 3, 2017, an answer was served on behalf of
the Co-Defendant, MICHELE A. BEACH. On October 12, 2017, an answer to the
third-party complaint was served by Co-Defendant, JALAKH SALIM. Copies of
these pleadings are attached hereto as Exhibit B.
18. Thereafter, on October 23, 2017, Plaintiff in Action #1, JOSE
GONZALES, filed a supplemental summons and amended complaint, naming
JALAKH SALIM as a direct defendant. On or about November 2, 2017, an
answer to the amended complaint was served on behalf of the movant
Defendant, FREDY R. URGILES. Copies of these pleadings are attached hereto
as Exhibit C.
19. The Plaintiffs in Action #2, SALIM JALAKH and HIND ALAEDDIN,
commenced Action #2 by the filing of a summons and complaint on or about
January 31, 2018. On or about May 17, 2018, an answer was served on behalf
of the movant Defendant, FREDY R. URGILES. On or about April 5, 2018, an
answer was served on behalf of the Co-Defendant, MICHELE A. BEACH. On June
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29, 2018, an answer was served by Co-Defendant, JOSE GONZALES. Copies of
these pleadings are attached hereto as Exhibit D.
20. It is well-established in New York State, that there are three
elements which must be present to recover in tort: (1) the existence of a legal
duty from the defendant to the plaintiff; (2) a breach of that duty; and (3) an
injury which was proximately caused by the breach of the duty ( see, e.g., Brandy
B. v Eden Cent. School Dist., 15 NY2d 297 [2010]).
21. If one of these elements is not present, there can be no recovery
by the plaintiff against the defendant ( see, e.g., Stukas v Streiter, 83 AD3d 18
[2d Dept 2011).
22. A defendant moving for summary judgment may sustain his or her
element"
burden "by negating a single essential of that cause of action ( Poon v
Nisanov, 2018 NY Slip Op 04365 [2d Dept] , citing Nunez v Chase Manhattan
Bank, 155 AD3d at 643).
23. The scope of one party's duty owed to another is a question of law
to be determined by the Court ( see, e.g., Espinal v Melville Snow Contractors,
Inc., 98 NY2d 136 [2002]). New York State case law recognizes there is no
liability on the driver of a motor vehicle who did not breach any duty.
24. As will be shown, the evidence and testimony of the parties
establishes that the movant Defendant did not breach any duty owed to the
Plaintiff.
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25. It is well settled, as the Court of Appeals held in Derdiarian v FeliY
Contracting Corp., 51 NY2d 308 (1980), that plaintiff must establish any alleged
negligence was a substantial cause of the events that resulted in his/her injuries.
26. Where defendant's vehicle merely furnishes the occasion for the
accident, any negligence that could be attributed to the defendant is not a
proximate cause of plaintiff's injuries ( see, e.g., Pierre v Olshever, 137 AD3d
1243 [2d Dept 2016]).
27. A driver with the right of way, is entitled to anticipate that other
motorists will obey traffic laws which require them to yield ( see, e.g., Bullock v
Calabretta, 119 AD3d 884 [2d Dept 2014]; Jordan v City of New York, 12 AD 3d
[1St
326 Dept 2004]).
28. The unexcused failure to observe the statutory standard of care, a_s
Co-Defendant BEACH did he_re, is negligence ( Martin v Herzog, 228 NY 164
[1920] ; Dalal v City of New York, 262 AD2d 596 [2d Dept 1999]).
29. Drivers are under a duty to maintain a reasonable speed, control
and care of their vehicles to an accident Rent-A-
avoid ( Oberman v. Alexanders
[1st
Car, et al.,56 AD2d 814 Dept 1977]).
30. New York State case law recognizes there is no liability on the
driver of a motor vehicle who was struck by a vehicle that failed to yield the right
of way.
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31. On November 9, 2018, the Plaintiff in Action #1/Co-Defendant in
Action #2, JOSE GONZALES, gave the following deposition testimony that is
attached hereto as Exhibit E:
On April 8, 2017, he was operating his 2012 Toyota Highlander
southbound on the New Jersey Turnpike, when he was involved in
the subject accident (pp. 14-17). He was moving from the right
lane into the left lane, travelling 50MPH at the time the subject
accident occurred (pp. 20-21). At the time of the accident, he was
partly in the right lane, and partly in the left lane (p. 27). He was
involved in only two (2) impacts from vehicles; the impact from the
oncoming [BEACH] vehicle, and then the impact with the [JALAKH]
Suburban (p. 21). He was not involved in any impacts with any
other vehicles (p. 38). He did not observe the [BEACH] vehicle at
any time prior to the accident (pp. 22, 33, 44-45). When asked
again if he ever observed the [BEACH] vehicle prior to the impact,
he replied: "No. Otherwise, I would have swerved if I [had] seen
coming."
the car (p. 22). He later testified: "I did not see the
[BEACH vehicle] at all. All I felt was the hit and right before the hit
lights."
I saw (p. 48). When asked how he knew he was involved
in an accident, he stated:
didn't'
"Well, at the beginning I know, because I
couldn't brake. I didn't see the car coming. I was
changing lanes. I was looking at my mirror, making
sure there were no cars coming from behind, from
the left lane, and I saw no cars coming. It was a bit
of a uphill around that section. There was a big car in
front of me that I wanted to get around, so I put my
signal [on], check my mirror, no cars coming, started
turning the wheel to change the lane. I changed my
sight from the mirror to the front, and all I saw was
[head]lights..."
(p. 22).
When asked if anything prevented him from observing the [BEACH]
vehicle, he replied:
"Number one, I was looking at my mirror, that's one,
I was paying attention to my mirror, because I wasn't
expecting a car to come the wrong way on the
turnpike..."
(p 46).
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horn from in front of him (pp. 29-
Prior to the impact, he heard a
30). After the two (2) vehicle impacts; he was then involved in two
(2) impacts with the divider walls (p. 35).
32. On July 16, 2019, the Co-Defendant, MICHELE A. BEACH, gave the
following deposition testimony that is attached hereto as Exhibit F:
On April 8, 2017, she was operating her Toyota Camry, when the
subject accident occurred (pp. 21-22). She recalls that she was
at 7-
headed upstate to see her sister for Easter, she had stopped
11 to get coffee and singles for tolls; she recalls taking the Long
Island Expressway, to the Cross Island Parkway, and headed to
New Jersey; she recalls crossing the Tappan Zee Bridge; she recalls
needing to go north; she recalls a sign saying one (1) direction was
north to upstate, and to the right was New Jersey Turnpike south
(pp. 22-28). She then stated the "cars wouldn't let me over, and I
right."
had to go to the (p. 27). When asked how long she was
travelling on the New Jersey Turnpike, she stated she was on the
New York Thruway going over the Tappan Zee Bridge, and she saw
a sign: "It said north, upstate, right, New Jersey South. That's all I
remember. If that was New Jersey Turnpike - I iust made
the wrong turn. I was lost. I had never been on the New
Turnpike_."
Jersev (p. 29). She then added:
"When I was get on the - when I was on the
trying to
New - New
York State O saw the sign going to Jersey
and I was too far over, they wouldn't let me n. I was
only in there a little bit. Just a little bit. I made a
right and I went down the wrong way with a one-way
thing..."
(p. 30).
She meant to go north, and she went south (p. 31). She later
again stated "Cars wouldn't let me go to the left where it said goes
north. I had to go right. They wouldn't let me move over. I went
it."
south, that's (p. 85). She then made a wrong turn trying to get
back on the north New York State Thruway, and ended up on the
New Jersey Turnpike; she did not want to get on the New Jersey
Turnpike (pp. 31, 33). It was her intention to co north,
enterina the wronq way and travailina south was by
accident (p. 53). She received a traffic citation for going the
wrong way, a citation for reckless driving, and another citation for a
"worse"
infraction; the three (3) tickets were pled down to the one
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(1) reckless diving infraction (pp. 74-77, 87). Her lawyer handled
traffic citations (pp. 75-
it, she does not know the specifics of the
76). She does not recall much of the accident (pp. 23, 32-33).
She did not seek any treatment for any head injury for this accident
(pp. 39-40). She does not have any other memory issues, other
than allegedly having memory issues as to the accident (pp. 40).
Within 24 hours prior to this accident, she had taken Vraylar,
Haldol, and Cogentin for bipolar disorder (p. 42). She had been
diagnosed with bipolar disorder since 1977, and was also
diagnosed with PTSD and depression; she then stated "They keep
me."
changing my diagnosis... They don't know what's wrong with
(pp. 81-82). She was being taken off Haldol, and taking Cogentin,
at the time of this accident because her doctors thought she had
side effect from Haldol (pp. 43. 80-
Tardive Dyskinesia, a disabling
81).
33. On July 16, 2019, the movant Defendant, FREDY R. URGILES, gave
the following deposition testimony that is attached hereto as Exhibit G:
On April 8, 2017, he was operating a 2015 Hyundai Elantra, in the
left southbound lane of the New Jersey Turnpike, when the subject
accident occurred (pp. 12, 20). He had only been on the New
Jersey Turnpike for approximately five (5) minutes prior to the
accident; he was travelling approximately 50-55 MPH (pp. 21-22).
He was travelling behind an SUV that suddenly swerved right, and
that is when he observed the [BEACH] headlights coming directly
toward him at approximately 70 MPH (p. 22). He immediately
"light"
braked and swerved right to avoid the head-on impact; a
sideswipe impact occurred between the vehicles (pp. 27-
22-24,
28). The [BEACH] vehicle was travelling northbound in the
southbound lanes (p. 39). His vehicle did not come into contact
with any other vehicles (p. 25). The [BEACH] vehicle then
continued (p. 25).
34. Your affirmant respectfully submits that the testimony establishes
that movant Defendant, FREDY R. URGILES, did not breach any duty, was not a
proximate cause, and is not liable for the subject accident.
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35. Courts have consistently held that a driver proceeding in his lane
with right of way is entitled to summary judgment against another driver that
causes a collision by entering the same lane in violation of Vehicle and Traffic
Law § 1126[a] or 1128(a) ( see Baldwin v Degenhardt, 82 NY2d 867 [1993] ;
Sullivan v Mandato, 58 AD3d 714 [2d Dept 2009]; Francis v Guzman, 51 AD3d
628 [2d Dept 2008]; Scott v Kass, 48 AD3d 785 [2d Dept 2008]; Williams v New
York City Trans. Auth., 37 AD3d 827 [2d Dept 2007]; Foster v Sanchez, 17 AD3d
[1St
312 [2d Dept 2005]; Zummo v Holmes, 57 AD3d 366 Dept 2008]; Neryaev v
Solon, 6 AD3d 510 [2d Dept 2004]).
36. In addition to the clear evidence as to the lack of any wrongdoing
on the part of movant Defendant URGILES; even assuming, any negligence can
somehow be alleged against Defendant URGILES, this is precisely the type of
scenario in which the Emergency Doctrine would absolve Defendant
URGILES of any liability.
37. Under the emergency doctrine, a party's failure to exercise her or
her best judgment is insufficient to establish negligence ( see, e.g., Bryan J.
Pacelli et al., Respondents, v Intruck Leasing Corp. et al., 128 AD3d 921 [2d
Dept 2015]).
38. As explained in Smit v Phillips, 74 AD3d 782 (2d Dept 2010):
'"[W]hen an actor is faced with a sudden and unexpected
circumstance which leaves little or no time for thought, deliberation
or consideration, or causes the actor to be reasonably so disturbed
that the actor must make a speedy decision without weighing
alternative courses of conduct, the actor may not be negligent if
the actions taken are reasonable and prudent in the emergency
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context'"
(quoting, Koenig v Lee, 53 AD3d 567 [2d Dept 2008]
quoting, Vitale v Levine, 44 AD3d 935 [2d Dept 2007]).
39. in Ricciardi v Nelson, 142 AD3d 492 (2d Dept 2016), the Court
similarly held that although a driver who has the right-of-way has a duty to
exercise reasonable care to avoid a collision, where such a driver has only
seconds to react to a vehicle which has failed to yield, he or she will not be held
comparatively negligent for failing to avoid the collision ( see also Levi v
Benyaminova, 128 AD3d 779 [2d Dept 2015]).
40. Mere speculation that a [party] may have failed to take some
unspecified accident-avoidance measures or in some other way contributed to
the occurrence of the accident is insufficient to defeat the [movant's] motion for
summary judgment. ( see Koenig v Lee, 53 AD3d 567 [2d Dept 2008]; Boos v
Bedrock Materials, Inc., 16 AD3d. 447 [2d Dept 2005] ; Sirico v. Beukelaer, 14
AD3d 549 [2d Dept 2005]).
41. A driver is not required to anticipate that a vehicle
travelina in the opposite direction will enter into oncominq_tra_ffic
( Ciraldo v Westchester County, NY Slip Op 00957 [2d Dept 2017] ; see also Inja
Lee v Ratz, 19 AD3d 552 [2d Dept 2005] quoting Eichenwald v Chaudhry, 17
AD3d 403 [2d Dept 2005] ; Williams v Simpson, 36 AD3d 507 [1st Dept 2007] ;
Sears v Doviak, 306 AD2d 681 [3d Dept 2003]; Gouchie v Gill, 198 AD2d 862
[4th Dept 1993]).
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42. Once a defendant establishes that a head-on collision was caused
by another vehicle crossing into his lane of travel, the defendant has established
action"
a "complete defense to [the] ( see Eisenbach v Rogers, 158 AD2d 792, IV.
denied, 79 NY2d 752 [1991]; Morowitz v /Vaughton, 150 AD2d 536 [2d Dept
[4th
1989]; Gouchie v Gill, 198 AD2d 862 Dept 1993]).
43. The driver whose vehicle travelled into the oncoming lane (the
"offending driver") is presumptively negligent ( see, e.g., Pfaffenback v White
Plains Express Comp., 17 NY2d 132 [1966]; Wasson v Szafarski, 6 AD3d 1182
[4th [4th
Dept 2004]; Gouchie v Gill, 198 AD2d 862 Dept 1993]; see also 5A
Warren's Negligence, Automobile, § 58.01[9]).
44. The failure of a driver, not otherwise negligent, who encounters a
car going in the opposite direction, "to avert the consequences of such an
negligent."
emergency can seldom be considered ( see Breckir v Lewis, 21 AD2d
[1st aff'
546, 549 Dept 1964], 15 NY2d 1027 [1965]; Gouchie v Gill, 198 AD2d
[4th
862 Dept 1993]).
45. A driver faced with the vehicle careening against the highway
directly into his path "is not liable for his failure to exercise the best judgment or
part."
for any errors of judgment on his ( see Wolfson v Darnell, 15 AD2d 516,
517 [2d Dept 1961], aff'd in part, dismissed in part12 NY2d 819 [1962]; Fermin
[1St
v Graziosi, 240 AD2d 365 [2d Dept 1997]; Caban v Vega, 226 AD2d 109
Dept 1996]).
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46. A party is faced with an emergency situation when the operator of
another vehicle, without the right of way, suddenly and unexpectedly enters the
party's path ( Kuci v Manhattan and Bronx
Preview
FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------X JOSE GONZALES, AFFIRMATION IN SUPPORT Plaintiff, Action #1 Index No. 154796/2017 -against- Hon. Adam Silvera MICHELE A. BEACH, FREDY R. URGILES and JALKH SALIM, Defendants ____________ X SALIM JALAKH and HIND ALAEDDIN , Plaintiffs, Action #2 Index No. 150911/2018 -against- MICHELE A. BEACH, FREDY R. URGILES, JOSE A. GONZALES, JOHN DOES I-X (said names being fictitious, true names unknown), and/or ABC CORP. I-X (said names being fictitious, true names unknown), Defendants. ------------------------- ---------------------X I, GERARD FERRARA, an attorney duly licensed to practice law in the Courts of the State of New York, under penalty of perjury, affirms: 1. I am associated with the law firm of SCAHILL LAW GROUP, P.C., counsel for the Defendant, FREDY R. URGILES, and as such am fully familiar with the facts, circumstances and pleadings in the above captioned matter. 2. I submit this affirmation in support of the pending summary judgment motion on the basis that the Defendant, FREDY R. URGILES, was not negligent and did not breach any duty owed to the Plaintiffs. Sensitivity: Confidential 1 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 3. This lawsuit for personal injuries arose out of a five (5) vehicle accident that happened on April 8, 2017 on the New Jersey Turnpike. 4. The movant Defendant URGILES vehicle was travelling in the left southbound lane of the New Turnpike. The Plaintiff in Action #1/Co- Jersey Defendant in Action #2, GONZALES vehicle, the Co-Defendant in Actions #1 and 2, JALAKH vehicle, and non-party PROVOST vehicle, were all also travelling southboundon the New Jersey Turnpike. Of these four (4) vehicles, the movant 'lead' URGILES vehicle was the vehicle. 5. The vehicle of Co-Defendant in Actions #1 and 2, MICHELE A. BEACH, was travelling northbound 6. The accident occurred when the BEACH vehicle. still travelling noithbound. suddenly entered the southbound lanes of New Jersev Turnoike, travelling the wrong way, head-on into oncoming traffic. 7. When faced with the sudden emergency of the oncoming BEACH vehicle, the movant Defendant URGILES reasonable responded by swerving to avoid a head-on collision. The oncoming BEACH vehicle side-swiped the URGILES vehicle, and then ccñtiñued northbound in the southbound lanes, and struck the GONZALES vehicle. As a result of the impact from the BEACH VEHICLE, the GONZALES vehicle spun, was struck by the JAl.AKH vehicle, and then struck the concrete barrier. The BEACH vehicle continued, and struck the non-party PROVOST vehicle, and then struck the concrete barrier. Sensitivity: Confidential 2 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 8. The so/e involvement of the movant URGILES vehicle in this accident, was to be struck by the oncoming BEACH vehicle which was travelling the wrong way in the southbound lanes. 9. The URGILES vehicle neither made any contact, nor caused a_rty contact, to any other vehicles. 10. A copy of the Police Accident Report is attached hereto as Exhibit A. 11. Police Accident Reports are consistently considered evidence and admissible ( see Scott v Kass, 48 AD3d 785 [2d Dept 2008]; Guevara v Zaharakis, 303 AD2d 555 [2d Dept 2003]; Ferrara v Poranski, 88 AD2d [2d Dept 1982]). 12. In Memenza v Cole, 131 AD3d 1020 (2d Dept 2015), the Court held: "Pursuant to CPLR 4518(a), a police accident report is admissible as a business record so long as the report is made based upon the officer's personal observations and while carrying out police duties (see Matter of Chu Man Woo v. Qiong Yun Xi, 106 AD3d 818 []; Holliday v. Hudson Armored Car & Courier Serv., 301 AD2d 392 []; Yeargans v. Yeargans, 24 AD2d 280 []. If information contained in a police accident report was not based upon the police officer's personal observations, it may nevertheless be admissible as a recordi business "if the person giving the police officer the information contained in the report was under a business duty to her]" relate the facts to him [or ( Stevens v. Kirby, 86 AD2d 391 []; see Johnson v. Lutz, 253 NY 124 []; Donohue v. Losito, 141 AD2d 691 []; Murray v. Donlan, 77 AD2d at 342 []; Toll v. State of New [])." York, 32 AD2d 47 1 Pursuant to Vehicle and Traffic Law § 600, a driver is under such business duty to report a motor vehicle accident. Sensitivity: Confidential 3 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 13. "The police officer who prepared the report was acting within the scope of his duty in recording the [driver's] statement... the statement is party." admissible as an admission of a (Jackson v Donien Trust, 103 AD3s 851, 852 [2d Dept 2013]). 14. Statements contained in a Police Accident Report based on present sense impressions and diagrams and other entries made by a responding police officer determining how vehicles collided with each other at the scene of the accident are admissible for the purposes of establishing a party's liability (see Scott v Kass, supra; Irizarry v Motor Vehicle Indemnification Corp., 287 AD2d 716 [2d Dept 2001]; Exantus v Town of Ossining, 266 AD2d 502 [2d Dept 1999]). 15. The Police Accident Report notes (see, Exhibit A): "On Saturday April 8, 2017 at approximately 0600 hours, a five [5] car motor vehicle crash occurred on the New Jersey Turnpike western spur on the south (NSW) roadway MP 115.1 in Carlstadt Boro, Bergen County, N1.. [Co-Defendant BEACH] was travê|||ng the wrong w_a_y, going northbound in the southbound lanes. [.Coo.- Subsequently, Defendant BEACHl__sideswiped Fthe URGILES vehiclel, w_hich was travelling south in the left lane. [The BEACH vehiclel continued travelling northbound and impacted [the GONZALES vehicle). As a result of the impact Ffrom the BEACH vehiclel, [the GONZALES vehiclel rotated and was impacted by [the JALAKH vehicleL which was travelling southbound. [The GONZALES vehicle] impacted the concrete barrier wall to the right, crossed the roadway to the left, and impacted the center concrete traffic barrier. [The BEACH vehicle] continued travelling northbound in the southbound lanes and sideswiped the [PROVOST vehicle]. [The BEACH vehicle] continued travelling northbound in the southbound lanes and impacted the concrete traffic barrier before coming to a final uncontrolled rest. Sensitivity: Confidential 4 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 16. Accordingly, summary judgment should be granted, and the complaint and any and all cross claims in Actions #1 and 2 dismissed as against the movant Defendant, FREDY R. URGILES. 17. The Plaintiff in Action #1, JOSE GONZALES, commenced Action #1 by the filing of a summons and complaint on or about May 24, 2017. On or about July 13, 2017, an answer was served on behalf of the movant Defendant, FREDY R. URGILES, along with a third-party summons and complaint as against JALAKH SALIM. On or about August 3, 2017, an answer was served on behalf of the Co-Defendant, MICHELE A. BEACH. On October 12, 2017, an answer to the third-party complaint was served by Co-Defendant, JALAKH SALIM. Copies of these pleadings are attached hereto as Exhibit B. 18. Thereafter, on October 23, 2017, Plaintiff in Action #1, JOSE GONZALES, filed a supplemental summons and amended complaint, naming JALAKH SALIM as a direct defendant. On or about November 2, 2017, an answer to the amended complaint was served on behalf of the movant Defendant, FREDY R. URGILES. Copies of these pleadings are attached hereto as Exhibit C. 19. The Plaintiffs in Action #2, SALIM JALAKH and HIND ALAEDDIN, commenced Action #2 by the filing of a summons and complaint on or about January 31, 2018. On or about May 17, 2018, an answer was served on behalf of the movant Defendant, FREDY R. URGILES. On or about April 5, 2018, an answer was served on behalf of the Co-Defendant, MICHELE A. BEACH. On June Sensitivity: Confidential 5 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 29, 2018, an answer was served by Co-Defendant, JOSE GONZALES. Copies of these pleadings are attached hereto as Exhibit D. 20. It is well-established in New York State, that there are three elements which must be present to recover in tort: (1) the existence of a legal duty from the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury which was proximately caused by the breach of the duty ( see, e.g., Brandy B. v Eden Cent. School Dist., 15 NY2d 297 [2010]). 21. If one of these elements is not present, there can be no recovery by the plaintiff against the defendant ( see, e.g., Stukas v Streiter, 83 AD3d 18 [2d Dept 2011). 22. A defendant moving for summary judgment may sustain his or her element" burden "by negating a single essential of that cause of action ( Poon v Nisanov, 2018 NY Slip Op 04365 [2d Dept] , citing Nunez v Chase Manhattan Bank, 155 AD3d at 643). 23. The scope of one party's duty owed to another is a question of law to be determined by the Court ( see, e.g., Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 [2002]). New York State case law recognizes there is no liability on the driver of a motor vehicle who did not breach any duty. 24. As will be shown, the evidence and testimony of the parties establishes that the movant Defendant did not breach any duty owed to the Plaintiff. Sensitivity: Confidential 6 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 25. It is well settled, as the Court of Appeals held in Derdiarian v FeliY Contracting Corp., 51 NY2d 308 (1980), that plaintiff must establish any alleged negligence was a substantial cause of the events that resulted in his/her injuries. 26. Where defendant's vehicle merely furnishes the occasion for the accident, any negligence that could be attributed to the defendant is not a proximate cause of plaintiff's injuries ( see, e.g., Pierre v Olshever, 137 AD3d 1243 [2d Dept 2016]). 27. A driver with the right of way, is entitled to anticipate that other motorists will obey traffic laws which require them to yield ( see, e.g., Bullock v Calabretta, 119 AD3d 884 [2d Dept 2014]; Jordan v City of New York, 12 AD 3d [1St 326 Dept 2004]). 28. The unexcused failure to observe the statutory standard of care, a_s Co-Defendant BEACH did he_re, is negligence ( Martin v Herzog, 228 NY 164 [1920] ; Dalal v City of New York, 262 AD2d 596 [2d Dept 1999]). 29. Drivers are under a duty to maintain a reasonable speed, control and care of their vehicles to an accident Rent-A- avoid ( Oberman v. Alexanders [1st Car, et al.,56 AD2d 814 Dept 1977]). 30. New York State case law recognizes there is no liability on the driver of a motor vehicle who was struck by a vehicle that failed to yield the right of way. Sensitivity: Confidential 7 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 31. On November 9, 2018, the Plaintiff in Action #1/Co-Defendant in Action #2, JOSE GONZALES, gave the following deposition testimony that is attached hereto as Exhibit E: On April 8, 2017, he was operating his 2012 Toyota Highlander southbound on the New Jersey Turnpike, when he was involved in the subject accident (pp. 14-17). He was moving from the right lane into the left lane, travelling 50MPH at the time the subject accident occurred (pp. 20-21). At the time of the accident, he was partly in the right lane, and partly in the left lane (p. 27). He was involved in only two (2) impacts from vehicles; the impact from the oncoming [BEACH] vehicle, and then the impact with the [JALAKH] Suburban (p. 21). He was not involved in any impacts with any other vehicles (p. 38). He did not observe the [BEACH] vehicle at any time prior to the accident (pp. 22, 33, 44-45). When asked again if he ever observed the [BEACH] vehicle prior to the impact, he replied: "No. Otherwise, I would have swerved if I [had] seen coming." the car (p. 22). He later testified: "I did not see the [BEACH vehicle] at all. All I felt was the hit and right before the hit lights." I saw (p. 48). When asked how he knew he was involved in an accident, he stated: didn't' "Well, at the beginning I know, because I couldn't brake. I didn't see the car coming. I was changing lanes. I was looking at my mirror, making sure there were no cars coming from behind, from the left lane, and I saw no cars coming. It was a bit of a uphill around that section. There was a big car in front of me that I wanted to get around, so I put my signal [on], check my mirror, no cars coming, started turning the wheel to change the lane. I changed my sight from the mirror to the front, and all I saw was [head]lights..." (p. 22). When asked if anything prevented him from observing the [BEACH] vehicle, he replied: "Number one, I was looking at my mirror, that's one, I was paying attention to my mirror, because I wasn't expecting a car to come the wrong way on the turnpike..." (p 46). Sensitivity: Confidential 8 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 horn from in front of him (pp. 29- Prior to the impact, he heard a 30). After the two (2) vehicle impacts; he was then involved in two (2) impacts with the divider walls (p. 35). 32. On July 16, 2019, the Co-Defendant, MICHELE A. BEACH, gave the following deposition testimony that is attached hereto as Exhibit F: On April 8, 2017, she was operating her Toyota Camry, when the subject accident occurred (pp. 21-22). She recalls that she was at 7- headed upstate to see her sister for Easter, she had stopped 11 to get coffee and singles for tolls; she recalls taking the Long Island Expressway, to the Cross Island Parkway, and headed to New Jersey; she recalls crossing the Tappan Zee Bridge; she recalls needing to go north; she recalls a sign saying one (1) direction was north to upstate, and to the right was New Jersey Turnpike south (pp. 22-28). She then stated the "cars wouldn't let me over, and I right." had to go to the (p. 27). When asked how long she was travelling on the New Jersey Turnpike, she stated she was on the New York Thruway going over the Tappan Zee Bridge, and she saw a sign: "It said north, upstate, right, New Jersey South. That's all I remember. If that was New Jersey Turnpike - I iust made the wrong turn. I was lost. I had never been on the New Turnpike_." Jersev (p. 29). She then added: "When I was get on the - when I was on the trying to New - New York State O saw the sign going to Jersey and I was too far over, they wouldn't let me n. I was only in there a little bit. Just a little bit. I made a right and I went down the wrong way with a one-way thing..." (p. 30). She meant to go north, and she went south (p. 31). She later again stated "Cars wouldn't let me go to the left where it said goes north. I had to go right. They wouldn't let me move over. I went it." south, that's (p. 85). She then made a wrong turn trying to get back on the north New York State Thruway, and ended up on the New Jersey Turnpike; she did not want to get on the New Jersey Turnpike (pp. 31, 33). It was her intention to co north, enterina the wronq way and travailina south was by accident (p. 53). She received a traffic citation for going the wrong way, a citation for reckless driving, and another citation for a "worse" infraction; the three (3) tickets were pled down to the one Sensitivity: Confidential 9 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 (1) reckless diving infraction (pp. 74-77, 87). Her lawyer handled traffic citations (pp. 75- it, she does not know the specifics of the 76). She does not recall much of the accident (pp. 23, 32-33). She did not seek any treatment for any head injury for this accident (pp. 39-40). She does not have any other memory issues, other than allegedly having memory issues as to the accident (pp. 40). Within 24 hours prior to this accident, she had taken Vraylar, Haldol, and Cogentin for bipolar disorder (p. 42). She had been diagnosed with bipolar disorder since 1977, and was also diagnosed with PTSD and depression; she then stated "They keep me." changing my diagnosis... They don't know what's wrong with (pp. 81-82). She was being taken off Haldol, and taking Cogentin, at the time of this accident because her doctors thought she had side effect from Haldol (pp. 43. 80- Tardive Dyskinesia, a disabling 81). 33. On July 16, 2019, the movant Defendant, FREDY R. URGILES, gave the following deposition testimony that is attached hereto as Exhibit G: On April 8, 2017, he was operating a 2015 Hyundai Elantra, in the left southbound lane of the New Jersey Turnpike, when the subject accident occurred (pp. 12, 20). He had only been on the New Jersey Turnpike for approximately five (5) minutes prior to the accident; he was travelling approximately 50-55 MPH (pp. 21-22). He was travelling behind an SUV that suddenly swerved right, and that is when he observed the [BEACH] headlights coming directly toward him at approximately 70 MPH (p. 22). He immediately "light" braked and swerved right to avoid the head-on impact; a sideswipe impact occurred between the vehicles (pp. 27- 22-24, 28). The [BEACH] vehicle was travelling northbound in the southbound lanes (p. 39). His vehicle did not come into contact with any other vehicles (p. 25). The [BEACH] vehicle then continued (p. 25). 34. Your affirmant respectfully submits that the testimony establishes that movant Defendant, FREDY R. URGILES, did not breach any duty, was not a proximate cause, and is not liable for the subject accident. Sensitivity: Confidential 10 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 35. Courts have consistently held that a driver proceeding in his lane with right of way is entitled to summary judgment against another driver that causes a collision by entering the same lane in violation of Vehicle and Traffic Law § 1126[a] or 1128(a) ( see Baldwin v Degenhardt, 82 NY2d 867 [1993] ; Sullivan v Mandato, 58 AD3d 714 [2d Dept 2009]; Francis v Guzman, 51 AD3d 628 [2d Dept 2008]; Scott v Kass, 48 AD3d 785 [2d Dept 2008]; Williams v New York City Trans. Auth., 37 AD3d 827 [2d Dept 2007]; Foster v Sanchez, 17 AD3d [1St 312 [2d Dept 2005]; Zummo v Holmes, 57 AD3d 366 Dept 2008]; Neryaev v Solon, 6 AD3d 510 [2d Dept 2004]). 36. In addition to the clear evidence as to the lack of any wrongdoing on the part of movant Defendant URGILES; even assuming, any negligence can somehow be alleged against Defendant URGILES, this is precisely the type of scenario in which the Emergency Doctrine would absolve Defendant URGILES of any liability. 37. Under the emergency doctrine, a party's failure to exercise her or her best judgment is insufficient to establish negligence ( see, e.g., Bryan J. Pacelli et al., Respondents, v Intruck Leasing Corp. et al., 128 AD3d 921 [2d Dept 2015]). 38. As explained in Smit v Phillips, 74 AD3d 782 (2d Dept 2010): '"[W]hen an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency Sensitivity: Confidential 11 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 context'" (quoting, Koenig v Lee, 53 AD3d 567 [2d Dept 2008] quoting, Vitale v Levine, 44 AD3d 935 [2d Dept 2007]). 39. in Ricciardi v Nelson, 142 AD3d 492 (2d Dept 2016), the Court similarly held that although a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision, where such a driver has only seconds to react to a vehicle which has failed to yield, he or she will not be held comparatively negligent for failing to avoid the collision ( see also Levi v Benyaminova, 128 AD3d 779 [2d Dept 2015]). 40. Mere speculation that a [party] may have failed to take some unspecified accident-avoidance measures or in some other way contributed to the occurrence of the accident is insufficient to defeat the [movant's] motion for summary judgment. ( see Koenig v Lee, 53 AD3d 567 [2d Dept 2008]; Boos v Bedrock Materials, Inc., 16 AD3d. 447 [2d Dept 2005] ; Sirico v. Beukelaer, 14 AD3d 549 [2d Dept 2005]). 41. A driver is not required to anticipate that a vehicle travelina in the opposite direction will enter into oncominq_tra_ffic ( Ciraldo v Westchester County, NY Slip Op 00957 [2d Dept 2017] ; see also Inja Lee v Ratz, 19 AD3d 552 [2d Dept 2005] quoting Eichenwald v Chaudhry, 17 AD3d 403 [2d Dept 2005] ; Williams v Simpson, 36 AD3d 507 [1st Dept 2007] ; Sears v Doviak, 306 AD2d 681 [3d Dept 2003]; Gouchie v Gill, 198 AD2d 862 [4th Dept 1993]). Sensitivity: Confidential 12 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 42. Once a defendant establishes that a head-on collision was caused by another vehicle crossing into his lane of travel, the defendant has established action" a "complete defense to [the] ( see Eisenbach v Rogers, 158 AD2d 792, IV. denied, 79 NY2d 752 [1991]; Morowitz v /Vaughton, 150 AD2d 536 [2d Dept [4th 1989]; Gouchie v Gill, 198 AD2d 862 Dept 1993]). 43. The driver whose vehicle travelled into the oncoming lane (the "offending driver") is presumptively negligent ( see, e.g., Pfaffenback v White Plains Express Comp., 17 NY2d 132 [1966]; Wasson v Szafarski, 6 AD3d 1182 [4th [4th Dept 2004]; Gouchie v Gill, 198 AD2d 862 Dept 1993]; see also 5A Warren's Negligence, Automobile, § 58.01[9]). 44. The failure of a driver, not otherwise negligent, who encounters a car going in the opposite direction, "to avert the consequences of such an negligent." emergency can seldom be considered ( see Breckir v Lewis, 21 AD2d [1st aff' 546, 549 Dept 1964], 15 NY2d 1027 [1965]; Gouchie v Gill, 198 AD2d [4th 862 Dept 1993]). 45. A driver faced with the vehicle careening against the highway directly into his path "is not liable for his failure to exercise the best judgment or part." for any errors of judgment on his ( see Wolfson v Darnell, 15 AD2d 516, 517 [2d Dept 1961], aff'd in part, dismissed in part12 NY2d 819 [1962]; Fermin [1St v Graziosi, 240 AD2d 365 [2d Dept 1997]; Caban v Vega, 226 AD2d 109 Dept 1996]). Sensitivity: Confidential 13 of 15 FILED: NEW YORK COUNTY CLERK 05/05/2020 03:27 PM INDEX NO. 154796/2017 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/05/2020 46. A party is faced with an emergency situation when the operator of another vehicle, without the right of way, suddenly and unexpectedly enters the party's path ( Kuci v Manhattan and Bronx