Preview
FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
_____________________________________________________
YAKOV JACK SHIMONOV,
Plaintiff, INDEX NO. 715091/2021
-against- AFFIRMATION IN
REPLY
IN-STORE DISTRIBUTORS, INC. and DYLAN PATRICK
RUPP,
Defendants.
_____________________________________________________
Diane Bernard, an attorney admitted to practice in the State of New York, affirms the
following under the penalties of perjury:
1. That I am an associate at the law firm of Elliot Ifraimoff & Associates, P.C., the
attorney of record for the plaintiff YAKOV JACK SHIMONOV, and as such I am thoroughly
conversant with the facts and circumstances herein based upon the contents of the file maintained
by this office.
2. I make this Reply to the affirmation in opposition to the instant motion for
summary judgment on liability.
3. This is an action for personal injuries sustained by plaintiff as a result of the
motor vehicle accident which took place on the Van Wyck Expressway. Defendant opposed
plaintiff’s motion claiming the motion was premature, there were issues of fact exist regarding
how the accident occurred and plaintiff’s comparative negligence.
4. As an initial matter, it should be noted that defendant did not present any evidence
that plaintiff was not seat-belted at the time of the accident. In fact, Plaintiff testified he was
wearing his seatbelt at the time of the accident. Exhibit C, p. 20 line 11. The failure to use a
seatbelt is an affirmative defense that must be properly pleaded and provided by the defendant
(Vehicle and Traffic Law 1229-c; Baginski v. New York Tel. Co., 130 A.D.2d 362, 363, 515
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N.Y.S.2d 23 (1987). While an affirmative defense should not be dismissed if there is any doubt
as to its availability (see, Warwick v. Cruz, 270 A.D.2d 255), this defense must also be viewed in
light of Plaintiff’s instant motion. Plaintiff provided evidence in the form of his sworn affidavit
that he was wearing his seatbelt at the time of the accident. This constitutes a prima facie
showing the he satisfied both his statutory duty and his common law duty to protect himself.
This sufficiently shifts the burden to Defendant to show otherwise, by the admission of
competent evidence. Defendant cannot do that here. “The mere hope or speculation that evidence
sufficient to defeat a motion for summary judgment may be uncovered during the discovery
process is insufficient to deny the motion” Lopez v. WS Distrib., Inc., (2d Dept. 2006).
Therefore, the affirmative defense in defendants’ answer alleging Plaintiff failed to use a seat
belt should be stricken.
I. PLAINTIFF’S SUMMARY JUDGMENT MOTION ON THE ISSUE OF
LIABILITY IS NOT PREMATURE
5. In Opposition, Defendants contend the instant Motion for Summary Judgment is
premature as additional discovery is necessary, including depositions. Courts have continuously
held that summary judgment is permissible notwithstanding the fact that depositions have yet to
be held. Avant v. Cepin Livery Corp., 74 AD3d 533 [1st Dep't 2010]; Thompson v. Pizzaro, 155
AD3d 423 (1st Dep’t 2017); see also Rosario v. Vasquez 93 AD3d 509 (1st Dep't 2012). “The
mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may
be uncovered during the discovery process is insufficient to deny the motion” Lopez v. WS
Distrib., Inc., (2d Dept. 2006).
6. While a party is entitled to a reasonable opportunity to conduct discovery in
advance of a summary judgment determination (See Bernstein v. New York City Transit Auth.,
153 A.D.3d 897 (2d Dept. 2017) , a party who contends that a summary judgment motion is
premature is required to demonstrate that discovery might lead to relevant evidence or the facts
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essential to justify opposition to the motion were exclusively within the knowledge and control
of the movant (see CPLR 3212 [f]; see also Boorstein v. 1261 48th St. Condominium, 96 A.D.3d
703 (2d Dept. 2012); Dietrich v. Grandsire, 83 A.D.3d 994 (2d Dept. 2011); Trombetta v.
Cathone, 59 A.D.3d 526 (2d Dept. 2009).
7. Defendants allege the Plaintiff failed to submit his MV104 in discovery. Thus,
Defendants allege, facts essential to justify opposition to the motion were exclusively within the
knowledge and control of the plaintiff. This is simply false. Like accident reports, an MV-104 is
public record and could have easily been obtained through a Department of Motor Vehicle
search. Thus, Defendants’ failure to obtain any MV104 in connection with this accident is a
result of defense counsel’s own inattention.
8. Defendants allege “there is information pertinent to the defense of this matter,
which can only be obtained through depositions.” See Def. Opp. ¶ 10. The defendants’
contention that the plaintiffs' motion is premature because the depositions have not been held
does not establish what information the defendant hopes to discover at the depositions that would
relieve them of liability in this case. “The mere hope or speculation that evidence sufficient to
defeat a motion for summary judgment may be uncovered during the discovery process is
insufficient to deny the motion” Lopez v. WS Distrib., Inc., (2d Dept. 2006).
9. In support of the instant motion, Plaintiff submitted a sworn affidavit stating:
-he was stopped in traffic on the Van Wyck Expressway when he was rear-ended
by Defendants’ vehicle (See Pffs. Exh D. ¶5).
- he brought his vehicle to a complete stop due to traffic conditions ahead. (Id. at
¶6).
- he remained completely stopped for approximately 10 seconds when the vehicle
operated by the defendant DYLAN PATRICK RUPP struck his vehicle. (Id. at ¶7)
- the front of the abovesaid vehicle struck the rear of his vehicle and pushed him
into the vehicle stopped ahead of him. (Id).
- he did not cause or contribute to the happening of this accident in any way. He
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did not stop his vehicle short or abruptly. He was not speeding immediately prior to the accident,
nor did he make any maneuvers with his vehicle to cause or contribute to the happening of this
accident. His vehicle was completely stopped and he was free from all distractions at the time of
the accident.
10. Plaintiff’s affidavit establishes his prima facie case entitlement to summary
judgment. It is well settled that a rear-end collision with a stopped vehicle creates a prima facie
case of liability against the operator of the following vehicle. The burden then shifts to the
operator of the following vehicle to provide a rebuttal for the inference of negligence—
Defendant must provide a reasonable, non-negligent explanation for the collision. See Macauley
v. Elrac, Inc., 6 A.D.3d 584, 775 N.Y.S.2d 78 (2d Dept. 2004); Argiro v. Norfolk Contract
Carrier, Inc., 275 A.D.2d 384, 712 N.Y.S.2d 599 (2d Dept. 2000).
11. Plaintiff’s affidavit clearly states he was pushed into the vehicle ahead of him
after he was rear ended by Defendants’ vehicle. Thus, the impact between Plaintiff’s vehicle and
the lead vehicle did not occur first. Defendants make no allegation that Plaintiff’s vehicle was
involved in an accident with the lead vehicle prior to Defendants’ vehicle colliding with
Plaintiff’s vehicle. Thus, Defendants’ argument that granting summary judgment prior to
depositions is unpersuasive. Contrary to defendants’ assertions, Plaintiff’s version of events as
set forth in his sworn affidavit is consistent with the lead vehicle’s version of events. See MV104
attached.
12. For these reasons, Plaintiff’s motion is not premature.
II. THERE ARE NO GENUINE ISSUES OF MATERIAL FACT
13. In opposition, Defendants submitted a sworn affidavit from the Defendant driver,
DYLAN PATRICK RUPP. In his sworn affidavit, Defendant acknowledged the accident
occurred around 7:30 am, which is considered rush hour. Defendant further admitted that
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Plaintiff’s vehicle was stopped for no more than 5 seconds. Def. Exh C. Thus, Plaintiff could
have been stopped for 5 seconds, giving Defendant sufficient time to observe Plaintiff’s vehicle
and avoid the accident.
14. It is undisputed that Defendants’ vehicle rear-ended Plaintiff’s vehicle. In its
Counter Statement of Facts, Defendant admits Defendant’s vehicle made contact with Plaintiff’s
vehicle vehicle. See Doc. 23, ¶5. Defendant alleges Plaintiff’s vehicle came to a sudden and
unexpected stop and he pressed his brakes in an attempt to bring his vehicle to a stop.
Unfortunately, he was not able to bring his vehicle to a complete stop. Id. at ¶8-10.
III. DEFENDANTS HAVE FAILED TO PROVIDE A NON-NEGLIGENT
EXPLANATION FOR THE ACCIDENT
15. While Plaintiff has denied in his affidavit, making a sudden or abrupt stop,
“Defendant driver's assertion that Plaintiff's vehicle came to a sudden stop, standing alone, is
insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for
the collision between the plaintiff's vehicle and the defendants' vehicle” (see Edgerton v. City of
New York, 160 A.D.3d at 811, 74 N.Y.S.3d 617; Robayo v. Aghaabdul, 109 A.D.3d 892, 893,
971 N.Y.S.2d 317); Byrne v. Calogero, 96 AD3d 704, 705 [2012] ); Dickie v. Pei Xiang Shi, 304
A.D.2d 786, 787, 759 N.Y.S.2d 141, 142 (2003).
16. Even assuming, arguendo, that Plaintiff’s vehicle stopped suddenly or abruptly,
which is not the case at bar based upon Plaintiff’s sworn affidavit, a driver is required to see that
which he should have seen through the proper use of his senses and to exercise reasonable care
under the circumstances to avoid an accident (see Breslin v Rudden, 291 A.D.2d 471, 738
N.Y.S.2d 471 (2d Dept 2002); Filipazzo v Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710 (2d
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Dept 2000); Zambrano v Seok, 277 A.D.2d 312, 715 N.Y.S.2d 750 (2d Dept 2000); Lundy v.
Llatin, 51 A.D.3d 877, 878, 858 N.Y.S.2d 341, 342 (2008).
17. Thus, failure to make proper use of his senses and to exercise reasonable care
under the circumstances constitutes negligence. The defendant driver was under a duty to
maintain a safe distance between his vehicle and the plaintiff's vehicle (see Tumminello v. City
of New York, 148 A.D.3d at 1085, 49 N.Y.S.3d 739).
18. The Court in Ayach v. Ghazal, found the Defendants’ claim that the Plaintiff’s
vehicle was cut off by a third vehicle did not provide a non-negligent explanation for the
Defendant driver’s conduct. Accordingly, Plaintiffs were entitled to summary judgment on the
issue of liability. Id. at 743. (see Ayach v. Ghazal, 25 AD3d 742 (2d Dept. 2006). Here, there is
no proof or allegation that Plaintiff’s vehicle was involved in an accident prior to the contact
between Defendants vehicle and Plaintiff’s vehicle. Yet, despite the alleged “sudden stop”
Defendant failed to avoid hitting a vehicle that was stopped for no more than 5 seconds.
19. Regarding plaintiff’s alleged comparative negligence, there is no evidence that
plaintiff was negligent. Plaintiff’s affidavit establishes his freedom from comparative fault.
Plaintiff was completely stopped and did not come to a sudden or abrupt stop. However, even if
we assume that a question of fact exists, such question of fact does not prevent summary
judgment on liability to be granted to the plaintiff. See recent Court of Appeals case Rodriguez v.
City of NY, 31 NY3d 312 (Ct. of Appeals 2018).
20. It is our position that there is no question of fact as whether plaintiff was partially
at fault. However, if this court decides that a question of fact exists, summary judgment on
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liability as against the defendant should be granted and limited questions as to whether plaintiff
was negligent and whether plaintiff’s negligence was a substantial factor in causing his injuries
should be left for the jury.
21. In sum, plaintiff was seat-belted and, therefore, the affirmative defense alleging
failure to utilize seat belts in defendant’s answer should be stricken. Moreover, there is no issue
of the plaintiff’s comparative negligence. Plaintiff’s sworn affidavit states his vehicle was
completely stopped for approximately ten second prior to the accident. Defendants admit
Plaintiff’s vehicle was stopped before the accident occured. Therefore, summary judgment on
liability should be granted, summary judgment holding plaintiff free of comparative negligence
should be granted and affirmative defense for failure to utilize seat belts in defendant’s answer
should be stricken. Even if this court finds that a question of fact as to whether plaintiff was
comparatively negligent exists, summary judgment on liability as against the defendant should
be granted.
Dated: Forest Hills, New York
December 7, 2021
Diane Bernard_________________
By: Diane Bernard
ELLIOT IFRAIMOFF & ASSOCIATES, P.C.
Attorneys for Plaintiff
118-35 Queens Blvd., Suite 1250
Forest Hills, New York 11375
Tel: (718) 205-1010
Patrice C.S. Melville, Esq.
CASCONE & KLUEPFEL, LLP
Attorneys for Defendants
497 Main Street Farmingdale
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New York 11735
(516) 747-1990 Our File No.: 05571DVM
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Preview
FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS _____________________________________________________ YAKOV JACK SHIMONOV, Plaintiff, INDEX NO. 715091/2021 -against- AFFIRMATION IN REPLY IN-STORE DISTRIBUTORS, INC. and DYLAN PATRICK RUPP, Defendants. _____________________________________________________ Diane Bernard, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury: 1. That I am an associate at the law firm of Elliot Ifraimoff & Associates, P.C., the attorney of record for the plaintiff YAKOV JACK SHIMONOV, and as such I am thoroughly conversant with the facts and circumstances herein based upon the contents of the file maintained by this office. 2. I make this Reply to the affirmation in opposition to the instant motion for summary judgment on liability. 3. This is an action for personal injuries sustained by plaintiff as a result of the motor vehicle accident which took place on the Van Wyck Expressway. Defendant opposed plaintiff’s motion claiming the motion was premature, there were issues of fact exist regarding how the accident occurred and plaintiff’s comparative negligence. 4. As an initial matter, it should be noted that defendant did not present any evidence that plaintiff was not seat-belted at the time of the accident. In fact, Plaintiff testified he was wearing his seatbelt at the time of the accident. Exhibit C, p. 20 line 11. The failure to use a seatbelt is an affirmative defense that must be properly pleaded and provided by the defendant (Vehicle and Traffic Law 1229-c; Baginski v. New York Tel. Co., 130 A.D.2d 362, 363, 515 1 1 of 8 FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 N.Y.S.2d 23 (1987). While an affirmative defense should not be dismissed if there is any doubt as to its availability (see, Warwick v. Cruz, 270 A.D.2d 255), this defense must also be viewed in light of Plaintiff’s instant motion. Plaintiff provided evidence in the form of his sworn affidavit that he was wearing his seatbelt at the time of the accident. This constitutes a prima facie showing the he satisfied both his statutory duty and his common law duty to protect himself. This sufficiently shifts the burden to Defendant to show otherwise, by the admission of competent evidence. Defendant cannot do that here. “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” Lopez v. WS Distrib., Inc., (2d Dept. 2006). Therefore, the affirmative defense in defendants’ answer alleging Plaintiff failed to use a seat belt should be stricken. I. PLAINTIFF’S SUMMARY JUDGMENT MOTION ON THE ISSUE OF LIABILITY IS NOT PREMATURE 5. In Opposition, Defendants contend the instant Motion for Summary Judgment is premature as additional discovery is necessary, including depositions. Courts have continuously held that summary judgment is permissible notwithstanding the fact that depositions have yet to be held. Avant v. Cepin Livery Corp., 74 AD3d 533 [1st Dep't 2010]; Thompson v. Pizzaro, 155 AD3d 423 (1st Dep’t 2017); see also Rosario v. Vasquez 93 AD3d 509 (1st Dep't 2012). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” Lopez v. WS Distrib., Inc., (2d Dept. 2006). 6. While a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination (See Bernstein v. New York City Transit Auth., 153 A.D.3d 897 (2d Dept. 2017) , a party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or the facts 2 2 of 8 FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212 [f]; see also Boorstein v. 1261 48th St. Condominium, 96 A.D.3d 703 (2d Dept. 2012); Dietrich v. Grandsire, 83 A.D.3d 994 (2d Dept. 2011); Trombetta v. Cathone, 59 A.D.3d 526 (2d Dept. 2009). 7. Defendants allege the Plaintiff failed to submit his MV104 in discovery. Thus, Defendants allege, facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff. This is simply false. Like accident reports, an MV-104 is public record and could have easily been obtained through a Department of Motor Vehicle search. Thus, Defendants’ failure to obtain any MV104 in connection with this accident is a result of defense counsel’s own inattention. 8. Defendants allege “there is information pertinent to the defense of this matter, which can only be obtained through depositions.” See Def. Opp. ¶ 10. The defendants’ contention that the plaintiffs' motion is premature because the depositions have not been held does not establish what information the defendant hopes to discover at the depositions that would relieve them of liability in this case. “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion” Lopez v. WS Distrib., Inc., (2d Dept. 2006). 9. In support of the instant motion, Plaintiff submitted a sworn affidavit stating: -he was stopped in traffic on the Van Wyck Expressway when he was rear-ended by Defendants’ vehicle (See Pffs. Exh D. ¶5). - he brought his vehicle to a complete stop due to traffic conditions ahead. (Id. at ¶6). - he remained completely stopped for approximately 10 seconds when the vehicle operated by the defendant DYLAN PATRICK RUPP struck his vehicle. (Id. at ¶7) - the front of the abovesaid vehicle struck the rear of his vehicle and pushed him into the vehicle stopped ahead of him. (Id). - he did not cause or contribute to the happening of this accident in any way. He 3 3 of 8 FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 did not stop his vehicle short or abruptly. He was not speeding immediately prior to the accident, nor did he make any maneuvers with his vehicle to cause or contribute to the happening of this accident. His vehicle was completely stopped and he was free from all distractions at the time of the accident. 10. Plaintiff’s affidavit establishes his prima facie case entitlement to summary judgment. It is well settled that a rear-end collision with a stopped vehicle creates a prima facie case of liability against the operator of the following vehicle. The burden then shifts to the operator of the following vehicle to provide a rebuttal for the inference of negligence— Defendant must provide a reasonable, non-negligent explanation for the collision. See Macauley v. Elrac, Inc., 6 A.D.3d 584, 775 N.Y.S.2d 78 (2d Dept. 2004); Argiro v. Norfolk Contract Carrier, Inc., 275 A.D.2d 384, 712 N.Y.S.2d 599 (2d Dept. 2000). 11. Plaintiff’s affidavit clearly states he was pushed into the vehicle ahead of him after he was rear ended by Defendants’ vehicle. Thus, the impact between Plaintiff’s vehicle and the lead vehicle did not occur first. Defendants make no allegation that Plaintiff’s vehicle was involved in an accident with the lead vehicle prior to Defendants’ vehicle colliding with Plaintiff’s vehicle. Thus, Defendants’ argument that granting summary judgment prior to depositions is unpersuasive. Contrary to defendants’ assertions, Plaintiff’s version of events as set forth in his sworn affidavit is consistent with the lead vehicle’s version of events. See MV104 attached. 12. For these reasons, Plaintiff’s motion is not premature. II. THERE ARE NO GENUINE ISSUES OF MATERIAL FACT 13. In opposition, Defendants submitted a sworn affidavit from the Defendant driver, DYLAN PATRICK RUPP. In his sworn affidavit, Defendant acknowledged the accident occurred around 7:30 am, which is considered rush hour. Defendant further admitted that 4 4 of 8 FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 Plaintiff’s vehicle was stopped for no more than 5 seconds. Def. Exh C. Thus, Plaintiff could have been stopped for 5 seconds, giving Defendant sufficient time to observe Plaintiff’s vehicle and avoid the accident. 14. It is undisputed that Defendants’ vehicle rear-ended Plaintiff’s vehicle. In its Counter Statement of Facts, Defendant admits Defendant’s vehicle made contact with Plaintiff’s vehicle vehicle. See Doc. 23, ¶5. Defendant alleges Plaintiff’s vehicle came to a sudden and unexpected stop and he pressed his brakes in an attempt to bring his vehicle to a stop. Unfortunately, he was not able to bring his vehicle to a complete stop. Id. at ¶8-10. III. DEFENDANTS HAVE FAILED TO PROVIDE A NON-NEGLIGENT EXPLANATION FOR THE ACCIDENT 15. While Plaintiff has denied in his affidavit, making a sudden or abrupt stop, “Defendant driver's assertion that Plaintiff's vehicle came to a sudden stop, standing alone, is insufficient to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision between the plaintiff's vehicle and the defendants' vehicle” (see Edgerton v. City of New York, 160 A.D.3d at 811, 74 N.Y.S.3d 617; Robayo v. Aghaabdul, 109 A.D.3d 892, 893, 971 N.Y.S.2d 317); Byrne v. Calogero, 96 AD3d 704, 705 [2012] ); Dickie v. Pei Xiang Shi, 304 A.D.2d 786, 787, 759 N.Y.S.2d 141, 142 (2003). 16. Even assuming, arguendo, that Plaintiff’s vehicle stopped suddenly or abruptly, which is not the case at bar based upon Plaintiff’s sworn affidavit, a driver is required to see that which he should have seen through the proper use of his senses and to exercise reasonable care under the circumstances to avoid an accident (see Breslin v Rudden, 291 A.D.2d 471, 738 N.Y.S.2d 471 (2d Dept 2002); Filipazzo v Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710 (2d 5 5 of 8 FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 Dept 2000); Zambrano v Seok, 277 A.D.2d 312, 715 N.Y.S.2d 750 (2d Dept 2000); Lundy v. Llatin, 51 A.D.3d 877, 878, 858 N.Y.S.2d 341, 342 (2008). 17. Thus, failure to make proper use of his senses and to exercise reasonable care under the circumstances constitutes negligence. The defendant driver was under a duty to maintain a safe distance between his vehicle and the plaintiff's vehicle (see Tumminello v. City of New York, 148 A.D.3d at 1085, 49 N.Y.S.3d 739). 18. The Court in Ayach v. Ghazal, found the Defendants’ claim that the Plaintiff’s vehicle was cut off by a third vehicle did not provide a non-negligent explanation for the Defendant driver’s conduct. Accordingly, Plaintiffs were entitled to summary judgment on the issue of liability. Id. at 743. (see Ayach v. Ghazal, 25 AD3d 742 (2d Dept. 2006). Here, there is no proof or allegation that Plaintiff’s vehicle was involved in an accident prior to the contact between Defendants vehicle and Plaintiff’s vehicle. Yet, despite the alleged “sudden stop” Defendant failed to avoid hitting a vehicle that was stopped for no more than 5 seconds. 19. Regarding plaintiff’s alleged comparative negligence, there is no evidence that plaintiff was negligent. Plaintiff’s affidavit establishes his freedom from comparative fault. Plaintiff was completely stopped and did not come to a sudden or abrupt stop. However, even if we assume that a question of fact exists, such question of fact does not prevent summary judgment on liability to be granted to the plaintiff. See recent Court of Appeals case Rodriguez v. City of NY, 31 NY3d 312 (Ct. of Appeals 2018). 20. It is our position that there is no question of fact as whether plaintiff was partially at fault. However, if this court decides that a question of fact exists, summary judgment on 6 6 of 8 FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 liability as against the defendant should be granted and limited questions as to whether plaintiff was negligent and whether plaintiff’s negligence was a substantial factor in causing his injuries should be left for the jury. 21. In sum, plaintiff was seat-belted and, therefore, the affirmative defense alleging failure to utilize seat belts in defendant’s answer should be stricken. Moreover, there is no issue of the plaintiff’s comparative negligence. Plaintiff’s sworn affidavit states his vehicle was completely stopped for approximately ten second prior to the accident. Defendants admit Plaintiff’s vehicle was stopped before the accident occured. Therefore, summary judgment on liability should be granted, summary judgment holding plaintiff free of comparative negligence should be granted and affirmative defense for failure to utilize seat belts in defendant’s answer should be stricken. Even if this court finds that a question of fact as to whether plaintiff was comparatively negligent exists, summary judgment on liability as against the defendant should be granted. Dated: Forest Hills, New York December 7, 2021 Diane Bernard_________________ By: Diane Bernard ELLIOT IFRAIMOFF & ASSOCIATES, P.C. Attorneys for Plaintiff 118-35 Queens Blvd., Suite 1250 Forest Hills, New York 11375 Tel: (718) 205-1010 Patrice C.S. Melville, Esq. CASCONE & KLUEPFEL, LLP Attorneys for Defendants 497 Main Street Farmingdale 7 7 of 8 FILED: QUEENS COUNTY CLERK 12/07/2021 06:43 PM INDEX NO. 715091/2021 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 12/07/2021 New York 11735 (516) 747-1990 Our File No.: 05571DVM 8 8 of 8