Preview
FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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FELIPE BURGOS, INDEX NO.: 701930/2022
REPLY AFFIRMATION
Plaintiff,
-against-
ZHINAN JIANG, TLC READY ONE LLC AND LYFT, INC.,
Defendant.
-------------------------------------------------------------X
IHOR STRATAN, ESQ., being an attorney duly admitted to practice law in the State of
New York, affirms the truth of the following, under penalty of perjury:
I am an associate with the firm of SANDERS, ARONOVA, GROSSMAN, WOYCIK,
VIENER & KALANT, PLLC, the attorneys of record for plaintiff FELIPE BURGOS in the
above captioned matter, and am fully familiar with the facts and circumstances of this matter, as
revealed to me by the file maintained by this office.
This Affirmation is submitted in support of plaintiff’s Motion for an Order pursuant to
CPLR 3212 (b) and (c) granting Summary Judgment to plaintiff against defendant ZHINAN
JIANG, TLC READY ONE LLC AND LYFT, INC. on the issue of liability and setting this
matter down for discovery as to damages only and in Reply to defendant LYFT’s Opposition.
Defendants ZHINAN JIANG, TLC READY ONE LLC failed to submit their opposition papers
in a timely manner. Thus, defendants ZHINAN JIANG, TLC READY ONE LLC are not
opposing this motion.
This is a hit-in-the-rear accident.
Point I: Plaintiff established his prima facie entitlement to summary judgment by showing
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that he was a passenger in the LYFT car which hit in the rear a non-party car, whereas
defendant-operator did not submit an admissible Affidavit or other competent evidence
stating a sufficient non-negligent explanation of the accident, did not deny that defendants’
car contacted the rear of another motor vehicle and thus summary judgment is warranted
By the moving papers, his Affidavit, testimony at Examination Under Oath and the police
report, plaintiff established his prima facie entitlement to summary judgment by showing that he
was he was a passenger in a LYFT car and that the LYFT car hit in the rear a non-party car and
then struck another non-party car. Thus, the burden of proof shifted to defendants to provide a
sufficient non-negligent explanation of the accident. Defendants did not provide a sufficient non-
negligent explanation of the accident and thus summary judgment is warranted.
Defendant-operator, as the first-hand knower of the facts did not even try to provide a
sufficient non-negligent explanation of the accident as he refused to submit to this Court a sworn
signed Affidavit, any other sworn document, or a written admission, that might be considered by
this Honorable Court as competent evidence. Thus, defendant did not even attempt to raise any
material issue of fact or show by competent evidence that he was not responsible for the
accident. Defendant LYFT’s opposition papers rely completely upon a speculative Affirmation
of the Defendant’s counsel that has no probative value as evidence and cannot disprove the
material facts of this case revealed by plaintiff in his sworn Affidavit of Merit, corroborated by
his testimony under oath and police report, such that plaintiff was a passenger in a LYFT car that
hit a non-party car in the rear.
It is well settled in the case law that “stopping short” is not a sufficient non-negligent
explanation and thus should not be considered as a defense to defendant’s hit-in-the-rear
collision with plaintiff’s car. In Mitchell v. Gonzalez, the First Department held that a rear-end
collision with a vehicle “creates a prima facie case of negligence, requiring judgment for plaintiff
unless defendant[s] can proffer a non-negligent explanation for [their] failure to maintain a safe
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distance between the cars.” See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App.
LEXIS App. Div. LEXIS 1546 (1st Dept. 2000) (citing Asante v. Williams, 227 A.D.2d 123, 641
N.Y.S.2d 317 (1st Dept. 1996); Abramowicz v. Roberto, 220 A.D.2d 374, 375, 631 N.Y.S.2d
442 (2d Dept. 1995)).
Further, the Mitchell Court continued by holding that “[i]t is not a sufficient defense to
claim that [the other] vehicle stopped short.” Id. (citing Danza v. Longieliere, 256 A.D.2d 434,
435, 681 N.Y.S.2d 603 (2d Dept. 1998), appeal dismissed 93 N.Y.2d 957, 694 N.Y.S.2d 634,
716 N.E.2d 699 (1999)).
It is well settled that “[w]here the moving party has demonstrated its entitlement to
summary judgment, the 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.” Zuckerman v. City of New York, 49 N.Y.2d 557, 560 427 N.Y.S.2d 718, 718
(1980). Since defendant did not submit his Affidavit he did not offer a non-negligent excuse for
the accident and did not personally state a material factual issue requiring a trial of the action,
plaintiff’s motion must be granted.
Plaintiff has consistently attested that this accident was solely caused by defendant-
operator’s vehicle coming into contact with the rear of a non-party vehicle. Defendants did not
submit a sworn signed Affidavit denying that his car contacted the rear of another vehicle, setting
some other version of how the accident happened and thus agreeing with plaintiff’s statements.
Thus, there are no material triable issues of fact.
Again, Mitchell v. Gonzalez, shows how New York Courts hold that a rear-end collision
with a vehicle “creates a prima facie case of negligence, requiring judgment for plaintiffs unless
defendant[s] can proffer a non-negligent explanation for [their] failure to maintain a safe distance
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between the cars” and that “[i]t is not a sufficient defense to claim that plaintiff’s vehicle stopped
short.” See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App. LEXIS App. Div.
LEXIS 1546 (1st Dept. 2000) (citing Asante v. Williams, 227 A.D.2d 123, 641 N.Y.S.2d 317
(1st Dept. 1996); Abramowicz v. Roberto, 220 A.D.2d 374, 375, 631 N.Y.S.2d 442 (2d Dept.
1995); Danza v. Longieliere, 256 A.D.2d 434, 435, 681 N.Y.S.2d 603 (2d Dept. 1998), appeal
dismissed 93 N.Y.2d 957, 694 N.Y.S.2d 634, 716 N.E.2d 699 (1999)).
In regard to non-negligent excuses, the Mitchell Court held that a wet roadway is not a
“sufficient defense to rebut the presumption of negligence.” Id. (citing Crociata v. Vasquez, 168
A.D.2d 410, 411, 562 N.Y.S.2d 536 (2d Dept. 1990)). The Court expounded on that issue
finding that “[a] driver is expected to drive at a sufficiently safe speed and to maintain enough
distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles,
taking into account the weather and road conditions.” Id. (citing Rodriquez v. City of New York,
259 A.D.2d 280, 686 N.Y.S.2d 394 (1st Dept. 1999)). Even if the rear-end collision occurred on
a wet and foggy night, a rear driver’s failure to maintain a safe speed and distance from the car in
front constitutes negligence as a matter of law. Id.
Another decision cited the Vehicle and Traffic Law in granting plaintiff summary
judgment in a rear collision accident. See Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d
545, 1999 N.Y. App. Div. LEXIS 5477 (1st Dept. 1999). In Philips, the Court stated that
“[d]rivers must maintain safe distances between their cars and the cars in front of them. Id. at
271, 547 (citing section 1129(a) of the Vehicle and Traffic Law). That Court noted that Section
1129(a) of the Vehicle and Traffic Law also imposes on drivers a duty to be aware of traffic
conditions, including vehicle stoppages. Id. Thus, “drivers have a ‘duty to see what should be
seen and to exercise reasonable care under the circumstances to avoid an accident.” Id. (quoting
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DeAngelis v. Kirschner, 171 A.D.2d 593, 595, 567 N.Y.S.2d 457, 458 (1st Dept 1991)).
In Diller v. City of New York Police Department, the First Department found that
Defendant are responsible for perceiving the traffic and weather conditions. See 269 A.D.2d
143, 144, 701 N.Y.S.2d 432, 433, 2000 N.Y. App. Div. LEXIS 989. “As it can be easily
anticipated that cars up ahead will make frequent stops in rush hour traffic, ‘defendant driver’s
failure to anticipate and react to the slow and cautious movement of plaintiff’s vehicle’ is not an
adequate, non-negligent explanation for the accident. Id. (quoting Galante v. BMW Financial
Services North America, 223 A.D.2d 421, 636 N.Y.S.2d 58 (1st Dept. 1996)). Thus, any
explanation regarding weather and traffic conditions will not excuse defendant-operator’s
striking of plaintiff’s vehicle in the rear.
Moreover, the New York Courts have granted summary judgment for plaintiffs in a
number of different rear end collision situations. That department has found that plaintiff was
entitled to summary judgment when “the front vehicle stops suddenly in slow moving
traffic.” Phillips, 261 A.D.2d at 271, 690 N.Y.S.2d at 547 (citing Mascitti v. Greene, 250
A.D.2d 821, 671 N.Y.S.2d 206 (2d Dept. 1998)). Additionally, summary judgment was granted
when the front vehicle was in stop-and-go traffic and while crossing an intersection. Id. (citing
Barba v. Best Sec. Corp., 235 A.D.2d 381, 652 N.Y.S.2d 71 (2d Dept. 1997)). Summary
judgment was granted even when the front vehicle had recently changed lanes in a roadway and
defendant struck that vehicle in the rear. Id. (citing Cohen v. Terranella, 112 A.D.2d 264, 491
N.Y.S.2d 711 (2d Dept. 1985)).
In the instant matter, neither defendant-operator nor other defendants have offered a
non-negligent explanation for the collision that is sufficient to overcome the inference of
negligence. Since cefendant-operator did not submit a sworn signed Affidavit, cefendants
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demonstrate this Court that they do not have a non-negligent explanation of how the accident
happened.
Point II: Plaintiff timely moved for summary judgment after the issue was joined,
provided an Affidavit that he was a passenger in the LYFT car which hit in the rear a non-
party car, corroborated his Affidavit with his sworn testimony at an Examination Under
Oath and police report, whereas cefendant LYFT’s counsel’s Affirmation in Opposition is
not supported by cefendant-operator’s sworn and signed Affidavit or any other competent
evidence and thus further discovery as to liability is not warranted
Pursuant to CPLR 3212, plaintiff timely moved for summary judgment after the issue
was joined. According to CPLR 3212 (b) a motion for summary judgment must be granted if,
“upon all the papers and proof submitted, the cause of action or defense shall be established
sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.”
In addition to this, CPLR 3212 (b) regulates that supporting proof in the motion for summary
judgment is an Affidavit and other available proof, such as depositions and written admissions.
In opposing the present motion for summary judgment submitted by plaintiff, Defendant did not
submit either a signed and notarized Affidavit, or any other sworn document, or any other
competent proof showing defendant had knowledge of the facts. Defendant’s opposition papers
are based exclusively on their counsel’s speculative affirmation.
In addition to the plaintiff’s sworn affidavit submitted with plaintiff’s motion for
summary judgment, plaintiff also provided this Honorable Court with a transcript of his
testimony at Examination Under Oath and a copy of the police report.
Point III: Moving papers contain Plaintiff’s Statement of Material Facts and thus
the motion is not defective
Moving papers contain Plaintiff’s Statement of Material Facts and thus the motion is not
defective. Defendants failed to adequately respond to and deny plaintiff’s statement of
uncontroverted facts and thus admitted those facts.
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Point IV: Plaintiff’s testimony at examination under oath, affidavit of merit and
police report prove that plaintiff was riding a LYFT car at the time of the accident whereas
defendants did not submit a sworn affidavit or other admissible evidence showing
otherwise
Plaintiff’s Affidavit of Merit in paragraph 3 states that plaintiff was riding a LYFT at the
time of the accident. See Plaintiff’s Affidavit of Merit.
Furthermore, plaintiff’s testimony at Examination Under Oath (see Exhibit “E” of the
moving papers) states:
Page 5 Lines 18
Q: Was it a cab or an Uber?
A: It was a Lyft.
Page 15 Lines 24-24, Page 16 Line 2
Q: Did you know the driver of the Lyft?
A: No, I did not. Just from the app I knew his name.
Defendants failed to deny the facts pleaded by plaintiff as they failed to submit necessary
proof in an admissible form. Defendant LYFT or other defendants failed to submit an Affidavit
of a sworn document showing that it was not a LYFT car or raising sufficient non-negligent
explanation of how the accident happened.
Based upon the foregoing, the plaintiff respectfully requests that his Motion for Summary
Judgment be granted.
No previous application has been made for the relief requested herein.
WHEREFORE, plaintiff requests that this Court grant plaintiff’s motion for Summary
Judgment, together with such, other, further and different relief as this Court deems just, proper
and equitable.
Dated: Garden City, New York
May 23, 2022
____________________________
Ihor Stratan, Esq.
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Pursuant to Rule 202.8 of the Rules of this Court, I certify that the accompanying Reply for
Plaintiff, which was prepared using Times New Roman 12-point font, contains 2071 words,
excluding the parts of the document that are exempt by Rule 202.8-(b). this certificate was
prepared in reliance on the word-count function of the word-processing system (Microsoft Office
Word 2010) used to prepare the document.
I declare under the penalties of perjury that the foregoing is true and correct.
Executed on May 23, 2022
________________________________________
Ihor Stratan, Esq.,
Counsel of Record for Plaintiff
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Preview
FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------X FELIPE BURGOS, INDEX NO.: 701930/2022 REPLY AFFIRMATION Plaintiff, -against- ZHINAN JIANG, TLC READY ONE LLC AND LYFT, INC., Defendant. -------------------------------------------------------------X IHOR STRATAN, ESQ., being an attorney duly admitted to practice law in the State of New York, affirms the truth of the following, under penalty of perjury: I am an associate with the firm of SANDERS, ARONOVA, GROSSMAN, WOYCIK, VIENER & KALANT, PLLC, the attorneys of record for plaintiff FELIPE BURGOS in the above captioned matter, and am fully familiar with the facts and circumstances of this matter, as revealed to me by the file maintained by this office. This Affirmation is submitted in support of plaintiff’s Motion for an Order pursuant to CPLR 3212 (b) and (c) granting Summary Judgment to plaintiff against defendant ZHINAN JIANG, TLC READY ONE LLC AND LYFT, INC. on the issue of liability and setting this matter down for discovery as to damages only and in Reply to defendant LYFT’s Opposition. Defendants ZHINAN JIANG, TLC READY ONE LLC failed to submit their opposition papers in a timely manner. Thus, defendants ZHINAN JIANG, TLC READY ONE LLC are not opposing this motion. This is a hit-in-the-rear accident. Point I: Plaintiff established his prima facie entitlement to summary judgment by showing 1 of 8 FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 that he was a passenger in the LYFT car which hit in the rear a non-party car, whereas defendant-operator did not submit an admissible Affidavit or other competent evidence stating a sufficient non-negligent explanation of the accident, did not deny that defendants’ car contacted the rear of another motor vehicle and thus summary judgment is warranted By the moving papers, his Affidavit, testimony at Examination Under Oath and the police report, plaintiff established his prima facie entitlement to summary judgment by showing that he was he was a passenger in a LYFT car and that the LYFT car hit in the rear a non-party car and then struck another non-party car. Thus, the burden of proof shifted to defendants to provide a sufficient non-negligent explanation of the accident. Defendants did not provide a sufficient non- negligent explanation of the accident and thus summary judgment is warranted. Defendant-operator, as the first-hand knower of the facts did not even try to provide a sufficient non-negligent explanation of the accident as he refused to submit to this Court a sworn signed Affidavit, any other sworn document, or a written admission, that might be considered by this Honorable Court as competent evidence. Thus, defendant did not even attempt to raise any material issue of fact or show by competent evidence that he was not responsible for the accident. Defendant LYFT’s opposition papers rely completely upon a speculative Affirmation of the Defendant’s counsel that has no probative value as evidence and cannot disprove the material facts of this case revealed by plaintiff in his sworn Affidavit of Merit, corroborated by his testimony under oath and police report, such that plaintiff was a passenger in a LYFT car that hit a non-party car in the rear. It is well settled in the case law that “stopping short” is not a sufficient non-negligent explanation and thus should not be considered as a defense to defendant’s hit-in-the-rear collision with plaintiff’s car. In Mitchell v. Gonzalez, the First Department held that a rear-end collision with a vehicle “creates a prima facie case of negligence, requiring judgment for plaintiff unless defendant[s] can proffer a non-negligent explanation for [their] failure to maintain a safe 2 of 8 FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 distance between the cars.” See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App. LEXIS App. Div. LEXIS 1546 (1st Dept. 2000) (citing Asante v. Williams, 227 A.D.2d 123, 641 N.Y.S.2d 317 (1st Dept. 1996); Abramowicz v. Roberto, 220 A.D.2d 374, 375, 631 N.Y.S.2d 442 (2d Dept. 1995)). Further, the Mitchell Court continued by holding that “[i]t is not a sufficient defense to claim that [the other] vehicle stopped short.” Id. (citing Danza v. Longieliere, 256 A.D.2d 434, 435, 681 N.Y.S.2d 603 (2d Dept. 1998), appeal dismissed 93 N.Y.2d 957, 694 N.Y.S.2d 634, 716 N.E.2d 699 (1999)). It is well settled that “[w]here the moving party has demonstrated its entitlement to summary judgment, the 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.” Zuckerman v. City of New York, 49 N.Y.2d 557, 560 427 N.Y.S.2d 718, 718 (1980). Since defendant did not submit his Affidavit he did not offer a non-negligent excuse for the accident and did not personally state a material factual issue requiring a trial of the action, plaintiff’s motion must be granted. Plaintiff has consistently attested that this accident was solely caused by defendant- operator’s vehicle coming into contact with the rear of a non-party vehicle. Defendants did not submit a sworn signed Affidavit denying that his car contacted the rear of another vehicle, setting some other version of how the accident happened and thus agreeing with plaintiff’s statements. Thus, there are no material triable issues of fact. Again, Mitchell v. Gonzalez, shows how New York Courts hold that a rear-end collision with a vehicle “creates a prima facie case of negligence, requiring judgment for plaintiffs unless defendant[s] can proffer a non-negligent explanation for [their] failure to maintain a safe distance 3 of 8 FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 between the cars” and that “[i]t is not a sufficient defense to claim that plaintiff’s vehicle stopped short.” See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App. LEXIS App. Div. LEXIS 1546 (1st Dept. 2000) (citing Asante v. Williams, 227 A.D.2d 123, 641 N.Y.S.2d 317 (1st Dept. 1996); Abramowicz v. Roberto, 220 A.D.2d 374, 375, 631 N.Y.S.2d 442 (2d Dept. 1995); Danza v. Longieliere, 256 A.D.2d 434, 435, 681 N.Y.S.2d 603 (2d Dept. 1998), appeal dismissed 93 N.Y.2d 957, 694 N.Y.S.2d 634, 716 N.E.2d 699 (1999)). In regard to non-negligent excuses, the Mitchell Court held that a wet roadway is not a “sufficient defense to rebut the presumption of negligence.” Id. (citing Crociata v. Vasquez, 168 A.D.2d 410, 411, 562 N.Y.S.2d 536 (2d Dept. 1990)). The Court expounded on that issue finding that “[a] driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account the weather and road conditions.” Id. (citing Rodriquez v. City of New York, 259 A.D.2d 280, 686 N.Y.S.2d 394 (1st Dept. 1999)). Even if the rear-end collision occurred on a wet and foggy night, a rear driver’s failure to maintain a safe speed and distance from the car in front constitutes negligence as a matter of law. Id. Another decision cited the Vehicle and Traffic Law in granting plaintiff summary judgment in a rear collision accident. See Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545, 1999 N.Y. App. Div. LEXIS 5477 (1st Dept. 1999). In Philips, the Court stated that “[d]rivers must maintain safe distances between their cars and the cars in front of them. Id. at 271, 547 (citing section 1129(a) of the Vehicle and Traffic Law). That Court noted that Section 1129(a) of the Vehicle and Traffic Law also imposes on drivers a duty to be aware of traffic conditions, including vehicle stoppages. Id. Thus, “drivers have a ‘duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident.” Id. (quoting 4 of 8 FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 DeAngelis v. Kirschner, 171 A.D.2d 593, 595, 567 N.Y.S.2d 457, 458 (1st Dept 1991)). In Diller v. City of New York Police Department, the First Department found that Defendant are responsible for perceiving the traffic and weather conditions. See 269 A.D.2d 143, 144, 701 N.Y.S.2d 432, 433, 2000 N.Y. App. Div. LEXIS 989. “As it can be easily anticipated that cars up ahead will make frequent stops in rush hour traffic, ‘defendant driver’s failure to anticipate and react to the slow and cautious movement of plaintiff’s vehicle’ is not an adequate, non-negligent explanation for the accident. Id. (quoting Galante v. BMW Financial Services North America, 223 A.D.2d 421, 636 N.Y.S.2d 58 (1st Dept. 1996)). Thus, any explanation regarding weather and traffic conditions will not excuse defendant-operator’s striking of plaintiff’s vehicle in the rear. Moreover, the New York Courts have granted summary judgment for plaintiffs in a number of different rear end collision situations. That department has found that plaintiff was entitled to summary judgment when “the front vehicle stops suddenly in slow moving traffic.” Phillips, 261 A.D.2d at 271, 690 N.Y.S.2d at 547 (citing Mascitti v. Greene, 250 A.D.2d 821, 671 N.Y.S.2d 206 (2d Dept. 1998)). Additionally, summary judgment was granted when the front vehicle was in stop-and-go traffic and while crossing an intersection. Id. (citing Barba v. Best Sec. Corp., 235 A.D.2d 381, 652 N.Y.S.2d 71 (2d Dept. 1997)). Summary judgment was granted even when the front vehicle had recently changed lanes in a roadway and defendant struck that vehicle in the rear. Id. (citing Cohen v. Terranella, 112 A.D.2d 264, 491 N.Y.S.2d 711 (2d Dept. 1985)). In the instant matter, neither defendant-operator nor other defendants have offered a non-negligent explanation for the collision that is sufficient to overcome the inference of negligence. Since cefendant-operator did not submit a sworn signed Affidavit, cefendants 5 of 8 FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 demonstrate this Court that they do not have a non-negligent explanation of how the accident happened. Point II: Plaintiff timely moved for summary judgment after the issue was joined, provided an Affidavit that he was a passenger in the LYFT car which hit in the rear a non- party car, corroborated his Affidavit with his sworn testimony at an Examination Under Oath and police report, whereas cefendant LYFT’s counsel’s Affirmation in Opposition is not supported by cefendant-operator’s sworn and signed Affidavit or any other competent evidence and thus further discovery as to liability is not warranted Pursuant to CPLR 3212, plaintiff timely moved for summary judgment after the issue was joined. According to CPLR 3212 (b) a motion for summary judgment must be granted if, “upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” In addition to this, CPLR 3212 (b) regulates that supporting proof in the motion for summary judgment is an Affidavit and other available proof, such as depositions and written admissions. In opposing the present motion for summary judgment submitted by plaintiff, Defendant did not submit either a signed and notarized Affidavit, or any other sworn document, or any other competent proof showing defendant had knowledge of the facts. Defendant’s opposition papers are based exclusively on their counsel’s speculative affirmation. In addition to the plaintiff’s sworn affidavit submitted with plaintiff’s motion for summary judgment, plaintiff also provided this Honorable Court with a transcript of his testimony at Examination Under Oath and a copy of the police report. Point III: Moving papers contain Plaintiff’s Statement of Material Facts and thus the motion is not defective Moving papers contain Plaintiff’s Statement of Material Facts and thus the motion is not defective. Defendants failed to adequately respond to and deny plaintiff’s statement of uncontroverted facts and thus admitted those facts. 6 of 8 FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 Point IV: Plaintiff’s testimony at examination under oath, affidavit of merit and police report prove that plaintiff was riding a LYFT car at the time of the accident whereas defendants did not submit a sworn affidavit or other admissible evidence showing otherwise Plaintiff’s Affidavit of Merit in paragraph 3 states that plaintiff was riding a LYFT at the time of the accident. See Plaintiff’s Affidavit of Merit. Furthermore, plaintiff’s testimony at Examination Under Oath (see Exhibit “E” of the moving papers) states: Page 5 Lines 18 Q: Was it a cab or an Uber? A: It was a Lyft. Page 15 Lines 24-24, Page 16 Line 2 Q: Did you know the driver of the Lyft? A: No, I did not. Just from the app I knew his name. Defendants failed to deny the facts pleaded by plaintiff as they failed to submit necessary proof in an admissible form. Defendant LYFT or other defendants failed to submit an Affidavit of a sworn document showing that it was not a LYFT car or raising sufficient non-negligent explanation of how the accident happened. Based upon the foregoing, the plaintiff respectfully requests that his Motion for Summary Judgment be granted. No previous application has been made for the relief requested herein. WHEREFORE, plaintiff requests that this Court grant plaintiff’s motion for Summary Judgment, together with such, other, further and different relief as this Court deems just, proper and equitable. Dated: Garden City, New York May 23, 2022 ____________________________ Ihor Stratan, Esq. 7 of 8 FILED: QUEENS COUNTY CLERK 05/23/2022 09:50 AM INDEX NO. 701930/2022 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/23/2022 Pursuant to Rule 202.8 of the Rules of this Court, I certify that the accompanying Reply for Plaintiff, which was prepared using Times New Roman 12-point font, contains 2071 words, excluding the parts of the document that are exempt by Rule 202.8-(b). this certificate was prepared in reliance on the word-count function of the word-processing system (Microsoft Office Word 2010) used to prepare the document. I declare under the penalties of perjury that the foregoing is true and correct. Executed on May 23, 2022 ________________________________________ Ihor Stratan, Esq., Counsel of Record for Plaintiff 8 of 8