Motion-Secondary: Pietro Scicchitano v. Monirul Islam

On October 25, 2018 a Motion-Secondary was filed involving a dispute between Pietro Scicchitano, and Monirul Islam, for Torts - Motor Vehicle in the District Court of Kings County.

Preview
FILED: KINGS COUNTY CLERK 11/08/2022 03:42 PM INDEX NO. 521543/2018
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/08/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS

PIETRO SCICCHITANO, Index No.: 521543/2018

Plaintiff, AFFIRMATION IN
REPLY
-against-

MONIRUL ISLAM,
Defendants.

Stephen F. Doddato, an attorney admitted to practice in the State of New York, affirms

the following under the penalties of perjury:

1. That I am of the law firm of Mirotznik & Associates, LLC, the attorneys of record for

the plaintiffs, and as such am thoroughly conversant with the facts and circumstances herein

based upon the contents of the filemaintained by this office.

2. I make this affirmation in reply, seeking an Order (1) pursuant to Section 3212 of the

Civil Practice Law and Rules granting summary judgment in favor of plaintiffs and against the

defendants; (2) pursuant to Section 3126 of the Civil Practice Law and Rules striking the answer

of the defendant, and for such other and further relief as to this Court may seem just and proper.

SUMMARY JUDGMENT IS PROPER

3. The defendant MONIRUL ISLAM'S opposition papers failed to include an affidavit from

someone with personal knowledge of the facts and therefore, said papers in opposition to Plaintiff's

summary judgment motion are deficient as a matter of law. As such, Plaintiff's motion should be

granted. Plaintiff established through pleadings and an affidavit that was on the Cross-
traveling

Island Parkway northbound, suddenly and without warning, defendant MONIRUL ISLAM's

vehicle came into contact with the rear of the SCICCHITANO vehicle. Thus, the Plaintiff, as

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previously stated, has made out a prima facie case as a passenger shifting the burden to the

defendants to show she was not negligent for the happening of the accident. As stated in the

seminal case Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), "[T]he

party opposing the motion must demonstrate by admissible evidence the existence of a factual

issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the

requirement"
submission of a hearsay affirmation by counsel alone does not satisfy this Id.

4. Here, the defendant has completely failed to come forward with any proof, in

admissible evidentiary form or otherwise, to rebut the Plaintiff's prima facie showing of

entitlement to summary judgment. Defendant's only opposition is the hearsay affirmation of

counsel which is of no evidentiary value. Essentially, by not submitting the sworn statement of

defendant MONIRUL ISLAM or offering any admissible evidence, the defendant has wholly

failed to meet his burden of rebuttal. See Zuckerman v. City of New York, supra; Hegy v. Coller,

(2nd
262 A.D.2d 606, 692 N.Y.S.2d 463 999

5. Defendant's opposition is fatally deficient as a matter of law, because itoffers no

Plaintiffs'
explanation aside from an attorney's speculation to rebut the prima facie case. See

(2nd
Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 Dept., 1989) (holding that to avoid

end'
summary judgment as to fault in a 'rear collision, the defendants were required to produce

evidentiary proof in admissible form).

6. Judgment may be summarily granted where compelling documentary evidence

clearly demonstrates that factual issues raised in opposition to the motion "are not genuine but

feigned. Glick & Dolleck v. Tri-Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 239

N.E.2d 725, citing Curry v. Mackenzie, 239 N.Y. 267, 269-270, 146 N.E. 375). Alvarez v. New

(1st
York City Housing Authority, 295 A.D.2d 225, 226-227,744 N.Y.S.2d 25,27 Dept.,2002).

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7. "[O]nly the existence of a bona fide issue raised by evidentiary facts, and not one

judgment."
based on conclusory or irrelevant allegations will suffice to defeat summary Rotuba

v. Extruders. Inc. v. Ceppose, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141,145 (1978). The defendant

operator, rather than his attorney, would be the party with personal knowledge of the relevant

facts. However, the defendants have elected not to submit an affidavit and no acceptable excuse

has been offered for their failure to do so. Furthermore, the attorney's "[m]ere conclusions,

fact."
expressions of hope, allegations or assertions are insufficient to raise a triable issue of

Pandey v. Parikh, 57 A.D.3d 634, 870 N.Y.S.2d 367; Zuckerman v. New York City Tr. Auth., 49

N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718.

8. Under circumstances such as these, where defense counsel's affirmation in

opposition is bereft of any evidentiary proof raising a triable issue regarding a defense or with

any evidence of negligent conduct on the part of the plaintiff, the plaintiff is entitled to summary

judgment on the issue of liability.Benyarko v. Avis Rent A Car System, Inc., 162 A.D.2d 572,556

(2nd (2nd
N.Y.S.2d 761 Dept. 1990); Filippazzo v. Santiago, 277 A.D.2d 41 9,7 16 N.Y.S.2d 7 10

Dept. 2000); Ribowsky v. Kashinsky, 234 A.D.2d 353, 651 N.Y.S.2d 886 (2nd Dept. 1996).

9. In this case, the defendants have not offered any explanation of conduct to rebut

the inference of negligence. CPLR 3212(b) mandates that to defeat a motion for summary

judgment, the opposing party must produce facts sufficient to require a trial of any issue of fact.

See, also, Abish v. Cetta, 155 A.D.2d 495, 547 N.Y.S.2d 358 (2nd Dept. 1989). This proof

cannot be in the form of bald, conclusory allegations. Jones v. Garnera, 1 53 A.D.2d 550, 544

(2nd
N.Y.S.2d 209 Dep't. 1989), or in the form of an attorney's affidavit. Zuckerman v. City of

New York, supra.

10. Plaintiff has made out a prima facie case, which has gone unrebutted by the

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defendants. As stated in his affidavit, Plaintiff was traveling on the Cross-Island Parkway

northbound, suddenly and without warning, defendant MONIRUL ISLAM's vehicle came into

contact with the rear of the SCICCHITANO vehicle. There is no factual basis for the defendants to

contend that the Plaintiff was at fault for the collision. In fact, the defendants do not even refuse

that the defendant's vehicle came into contact with the rear of Plaintiff's vehicle. The Plaintiff is

entitled to summary judgment as a matter of law.

11. Based upon the foregoing, Plaintiff requests that the Court strike the affirmative

defenses of culpable conduct on behalf of the Plaintiff. As stated above, defendants have not

submitted any evidence to oppose Plaintiff's version of the happenings of the accident. Plaintiff, as

an innocent passenger, is in no culpable for the happenings of the accident. As such, the affirmative

defenses of culpable conduct on behalf of the Plaintiff should be stricken.

22 NYCRR 202.8(b)

12. Defendant claims that Plaintiff's motion must be denied as procedurally defective

Papers"
because the "Length of requirement was not met pursuant to 22 NYCRR 202.8(b).

13. Plaintiff's word count was unintentionally left out of the scanned copy uploaded to

NYSCEF. Same is attached hereto as Exhibit "A", which will, although belated, conform with the

requirements of 22 NYCRR 202.8(b).

14. The unintentional omission of same from Plaintiff's motion papers is not something

that should preclude the Court from considering the merits of Plaintif Ts motion, but rather should be

irregularities"
considered harmless error. CPLR §2001 entitled "Mistakes, omissions, defects and

states:

At any stage of an action, the court may permit a mistake, omission, defect
or irregularity to be corrected, upon such terms as may be just, or, if a
substantial right of a party is notprejudiced, the mistake, omission, defect or

irregularity shall be disregarded.

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See, Legum v. Cairo Custom Shirts, Inc., 798 N.Y.S.2d 345, 4 Misc.3d 1028(A), 2004 WL 2222274

(Sup. Ct., Nassau Co. 2004)(movants failure to annex copy of pleadings to summary judgment

motion disregarded in exercise of Court's discretion pursuant to CPLR §2001).

15. It would be unjust to deny Plaintiff's motion for such a ministerial error, especially

for an action in which summary judgment is clearly proper.

16. The Court should determine the motion on the merits, in the interests of justice and

judicial economy. The Court should determine the motion on its merits in order to avoid further

motion practice burdening an already congested court system. See, ABC Medical Management, Inc.

v. GEICO Gen. Ins. Co., 770 N.Y.S.2d 610, 3 Misc.3d 181 (Civ. Ct., Queens Co. 2003); A&L

Scientific Corp. v. Latmore, 265 A.D.2d 355, 696 N.Y.S.2d 495 (2nd Dept. 1999); Freeman v. Easy

Glider Roller Rink, Inc., 114 A.D.2d 436, 494 N.Y.S.2d 351 (2nd Dept. 1985).

STRIKING DEFENDANT'S ANSWER IS PROPER

17. Plaintiff respectfully requests that the Court strike the defendant's Answer for

to appear for despite multiple court Orders - the
repeatedly failing deposition, including January 14,

2022 Order which included preclusion language.

18. Specifically, in the January 14, 2022, the court Ordered the parties to appear for

depositions before May 31, 2022. Should a party failto do so, the Court Ordered that "any party's

failure to comply with this order shall result in that party being precluded from offering evidence,

testifying at trial, or submitting an affidavit in response to any dispositive motion on the issue of

same."
liability, upon motion for Here, Plaintiff is making a motion to strike the defendants

Answer for the very same failure the Court must have anticipated by making itsOrder. As such,

the defendant's Answer must be stricken or in the alternative, precluded from offering evidence.

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19. Defendant claims that Plaintiff failed to show defendant acted willfully and

contumaciously. Initially, according to the January 14, 2022 Order, it is submitted that is not

received based up on the defendant's failure to appear for deposition. Additionally, the Plaintiff

clearly evidenced the defendant's willful and contumacious behavior. The deposition is over two

(2) years and multiple conferences dates and Court Orders overdue. Defendants have clearly

demonstrated a pattern of noncompliance with its discovery obligations. The only appropriate

is to strike their answer - because the Plaintiff is directed to file a Note of Issue
remedy especially

on or before November 18, 2022. Failing to appear for deposition demonstrates a willful failure to

comply with Court Orders and delaying prosecution of this case. Defendant failed to appear for

depositions and this failure to comply has materially prejudiced Plaintiff's case as the Note of Issue

date is fast approaching.

20. Defendant's claim that they have made diligent and good faith efforts to produce

Mr. Islam is a boilerplate nonsensical assertion. The Parties were caused to bust a previously

confirmed deposition and never confirmed another deposition due to Mr. Islam's nonappearance.

It isclear that they are not in contact with Mr. Islam, despite their claims to the contrary.

defendants'
21. Given failure to comply with the Orders of this Court and failure to

appear for depositions, Plaintiff seeks an Order striking defendant's answer. The Plaintiff is

entitled to full and complete disclosure and we respectfully request your Honor to strike

defendant's answer.

WHEREFORE, itis respectfully requested that this motion be granted in itsentirety, and

that such other and further relief be granted as this o seems just and proper.

Dated: East Meadow, New York
November 8, 2022

S phen F.

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ATTORNEY VERIFICATION

STATE OF NEW YORK )
):SS:
COUNTY OF KINGS )

I, STEPHEN DODDATO, an attorney duly admitted to practice law before the Courts of

the State of New York, affirms the following to be true to under the penalties of perjury pursuant

to The Uniform Civil Rules for the Supreme Court and the County Court Rule 202.8-b:

I have read the annexed AFFIRMATION IN REPLY and know the contents thereof consist

of 1,941 words, as determined by the Microsoft Word word-processing system. I certify that this

word count is in compliance with the word-count requirement in which affidavits, affirmations,

briefs and memoranda of law in chief limit o 7,000 , 0 words per this reply.

Dated: East Meadow, New York
November 8, 2022

STEl½IEbH O ATO

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No. 521543/2018

--------------------------------------------____-----------------

PIETRO SCICCHITANO,
Plaintiff,

-against-

MONIRUL ISLAM,
Defendants.

___________________________________________________

AFFIRMATION IN REPLY

____________________________________________

Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to
practice in the Courts of New York State, certifies that, upon information
and belief, and reasonable inquiry, tentions contained in the
annexed document are not frivolo

B .
S ephe oddato
MIROT & ASSOCIA ES, LLC
Attorneys for Plaintiff

2115 Hempstead Turnpike
East Meadow, New York 11554

(516) 794-8827

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Case Info

Judge

Delores Thomas Track Judge’s New Case

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Document Filed Date

November 08, 2022

Case Filing Date

October 25, 2018

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