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FILED: NEW YORK COUNTY CLERK 04/08/2022 02:56 PM INDEX NO. 452540/2015
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 04/08/2022
EXHIBIT A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X
TANYA MALLORY
Index No. 452540/2015E
Plaintiff,
-against-
THE CITY OF NEW YORK, ROBINSON S. KASSIEM,
NOTICE OF MOTION
JACOB A. RIVERS, CONSOLIDATED EDISON
COMPANY OF NEW YORK, and VERIZON NEW
YORK, INC.
Defendant.
---------------------------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed Affirmation of Deborah Lara, Esq. duly
affirmed on February 28, 2020, and all pleadings and proceedings heretofore had herein, the
undersigned will move this Court at the Submissions Part, Room 130, of the Courthouse located
at 60 Centre Street, New York, New York, on the 30th day of March, 2020 or as soon thereafter
as counsel can be heard for an Order pursuant to CPLR 3212 granting summary judgment as to
defendants'
liability in favor of the plaintiff, TANYA MALLORY, dismissing affirmative
defenses of culpable conduct and for such other and further relief as this Court deems just and
proper.
PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are to be served
upon the undersigned not less than seven (7) days prior to the return date herein.
Dated: February 28, 2020
New York, New York PARIS & HAIKIN, PLLC
BY:
Debor a a, Esq.
Attorneys for Plaintiff
14 Penn Plaza, Suite 2202
New York, New York 10122
212-722-0476
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To: Arron Washington-Childs, Esq.
Zachary Carter, Esq.
Law Department, CITY OF NEW YORK
100 Church St.
New York, NY 10007
Michael McNulty, Eq.
CON ED, Law Department
4 Irving Place
New York, NY 10003
Harold Rosengarten, Esq.
Obermayer Rebmann et al
Attorneys for VERIZON
521 Fifth 34th flor
Ave.,
New York, NY 10175
Desena & Sweeny
Attorneys for ROBINSON S. KASSIEM, JACOB A. R1VERS
138-32 Veteran's Memorial Highway
Hauppauge, NY 11788
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-_-----_----,...-_____________---------__________________---------------------X
TANYA MALLORY
Index No. 452540/2015E
Plaintiff,
-against-
THE CITY OF NEW YORK, ROBINSON S. KASSIEM,
AFFIRMATION
JACOB A. RIVERS, CONSOLIDATED EDISON
COMPANY OF NEW YORK, and VERI70N NEW
YORK , INC.
Defendant.
------------------------------------------------------------x
Deborah Lara, Esq., an attorney duly admitted to practice law before the Courts of the State of New
York, duly affirms the truth of the following:
1. I am a member ofParis & Chaikin, PLLC, attorneys for plaintiffs and as such am fully
familiar with the facts and circumstances surrounding this action.
plaintiffs'
2. I respect fully submit this Affirmation in support of motion, which seeks an
Order pursuant to the CPLR 3212 granting summary judgment in favor of plaintiff, Tanya Mallory
on the issue of liabilityagainst defendants THE CITY OF NEW YORK, ROBINSON S. KASSIEM,
JACOB A. RIVERS, CONSOLIDATED EDISON COMPANY OF NEW YORK, and VERIZON
defendants'
NEW YORK, INC., dismissing affirmative defenses of culpable conduct as to plaintiff
and for such other and further relief as this Court deems just and proper.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
3. This is an action for personal injuries sustained by plaintiff on October 2, 2013 due
to the negligence of the defendants. The Police Report is annexed hereto as Exhibit "A".
4. At said time and place, plaintiff was a passenger in the vehicle owned by defendant
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Rivers and operated by defendant Kasseirn when said vehicle was caused to come into sudden
violent contact with a defect in the roadway owned, operated, maintained, created and controlled
by defendants City of New York, Consolidated Edison Company and Verizon New York. As a
result ofthe impact plaintiff was caused to be thrown around and make contact with the interior of
the vehicle, the deployed airbags and flying glass.
defendants'
5. As a result of negligence, plaintiff was caused to sustain severe and
permanent injuries including, but not limited to, her right knee, neck, back, face and right shoulder.
Plaintiffs'
Affidavit is annexed hereto as Exhibit "B".
6. The instant action was commenced against defendants City of New York
Robinson S. Kasseim and Jacob A. Rivers by service of Summons and Veri0ed Complaint on
December 31, 2014. A Summons and Verified Complaint was thereafter served on defedants Con
Edison and Verizon on August 22. 2016. See Exhibit "C". Defendants interposed Answers which
are annexed hereto as Exhibit "D".
7. Plaintiff served a Bill of Particulars on March 1, 2018, A Supplemental Verified
Bill of Pariculars on January 7, 2019 and a Second Supplemental Bill of Particulars on January 25,
2019 copies of which are annexed hereto as Exhibit "E".
8. By Order dated August 1, 2017 case under Index numbers 157104/16 and
301833/14 were consolidated under index number 452540/15 in the Supreme Court, New York
County. Said Order is annexed hereto as Exhibit "F". By Order dated April 15, 2015 the Matter
of Tanya Mallory v. The City of New York, Kasseim and Rivers, Index No. 20005/15E was
transferred from Bronx County to New York County. See Exhibit "G".
9. Plaintiffnow moves for an Order granting summary judgment in favor ofplaintiffon
the issue of liability.
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STANDARD FOR SUMMARY JUDGMENT
10. Summary judgment is a drastic remedy which should only be employed when there
is no doubt as to the absence of triable issues. Andre v. Pomerov, 35 N.Y.2d 361, 320 N.E.2d 853,
362 N.Y.S.2d 131 (1974).
I1. On a motion for summary judgment the Court must accept the non-moving party's
allegations as true and leave for the trial issues of credibility. It iswell settled that issue finding,
as opposed to issue determination, is key to summary judgment. Krupp v. Aetna Life & Cas. Co.,
103 A.D. 2d 252, 479 N.Y.S.2d 992.
12. It iswell settled that on a motion for summary judgment, the facts must be viewed
in a light most favorable to the non-moving party and the non-moving party must be given the
benefit of every reasonable inference. Rust v. Rever, 91 N.Y.2d 355, 670 N.Y.S.2d 822 (1998);
(2"d
Cunneen v. Square Plus Operatine Corp., 249 A.D.2d 258, 671 N.Y.S.2d 284 Dept. 1998);
(2"d
Secof v. Greens Condominium, 158 A.D.2d 591, 551 N.Y.S.2d 563 Dept. 1990); and Nicastro
(2"d
v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184 Dept. 1985).
13. Furthermore, the burden of proof rests upon the moving party to set forth
facts to establish cause sufficient to warrant judgment as a matter of law. Lamberta L
evidentiary
Long Island Railroad, 51 A.D.2d 730, 379 N.Y.S.2d 139 (2d Dept. 1976). In granting an
application for judgment as a matter of law, the trial court must determine that by no rational
process could the trier of fact find in favor of the nonmoving party on the evidence. Noves v.
Gallen, 267 A.D.2d 365, 700 N.Y.S.2d 73 (2d. Dept. 1999). In considering such a motion, the
evidence must be construed in the light most favorable to the nonmoving party. and the motion
should not be granted where the facts are in dispute, where different inferences may be drawn from
the or where the of the witnesses is in question Noves v. Gallen supra.
evidence, credibility
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14. Even where there are discrepancies or contradictions in witness testimony, "the
facts."
significance of weakness and discrepancies are all issues for the trier of Pedone v. B&B
(2"d
liquipment Co., 239 A.D.2d 397, 662 N.Y.S.2d 766 Dept. 1997); see a/so Bernstein v. Red
(P"
\pple Supermarkets, 227 A.D.2d 262, 642 N.Y.S.2d 303 Dept. 1996).
15. Summary judgment must not be granted unless itis clear that by no rational process
can the jury find in favor of the non-moving party. O'Neill v. Port Authority of New York and
(2"d
New Jersey, 1 1 1 A.D.2d 616, 489 N.Y.S.2d 585 Dept. 1985).
PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT
ON THE ISSUE OF LIABILITY AS A MATTER OF LAW
16. Notwithstanding the fact that summary judgment is a drastic remedy, itis now well
settled in New York that in negligence actions, summary judgment in favor of plaintiff iswarranted
where the defendant's own conduct inculpates him. Ugarizza v. Schmieder, 46 N.Y.2d 471 (I979);
Andre v. Pomeroy: 35 N.Y.S.2d 361 (1974); Gerard v. Intelese, 1 1 A.D.2d 381 (1960); Siegel,
Practice Commentaries, CPER 3212: pp 104-105 (McK Supp).
17. In Terranella v. Cohen, 491 N.Y.S.2d 71 1, it was succinctly held that it is
negligence as a matter of law where defendant's liability is clear, unless there is a trueexcuse. The
Court of Appeals has held that summary judgment in a negligence action will be granted to plaintiff
where there is no conflict at all in the evidence, the defendant's conduct falls below reasonable
care and plaintiff's conduct is not causally involved. Heimrich v. Stevens. 67 A.D.2d 1093, 415
(40'
N.Y.S.2d 158 Dept 1979).
18. The defendant must submit proof in evidentiary form sufficient to establish factual
issues requiring a trial for their resolution. Zuckerman v. City of New York. 49 N.Y.S.2d 320;
State Bank of Albany v. VlcAuliffe, 97 A.D.2d 607, 467 N.Y.S.2d 944, 945. The defendant must
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lay bare and reveal his proof in order to show that matters set up in his answer are real and can be
established at trial. Falchook Markets Inc. v. Warner Reciprocal insurers. 54 A.D.2d 831, 388
N.Y.S.2d 100. Conclusory and fanciful allegations are insufficient to defeat a motion for summary
judgment. Maver v. McBruninan Construction Corp.. 105 A.D.2d 774, 481 N.Y.S.2d 719,720.
movants'
Furthermore, facts appearing in the papers, which the opposing part does not controvert,
may be deemed to be admitted. John William Costello Associates. Inc.. v. Standard Metals Cor!L
(15
99 A.D.2d 227, 472 N.Y.S.2d 325, 326 Dept. 1984).
19. It has been held that a passenger of a vehicle involved in an accident with another
vehicle is entitled to partial summary judgment on issue of liability regardless of which driver is at
faultas an innocent passenger could not possibly be found at faultunder either driver's version of the
(15
accident. See Garcia v. Tri-County Ambulette Service, Inc., 282 A.D.2d 206, 723 N.Y.S.2d 163
Dept., 2011). The right ofan innocent passenger involved in a vehicle accidentro summary judgment
in a personal injury action is not in any way restricted by potential issues of comparative negligence
as between the drivers of the vehicles. ld.
defendants'
20. Further, an innocent passenger is entitled to dismissal of affirmative
[1"
defense(s) of comparative fault. Oluwatayo v.Dulinayan, 142 AD3d 113 Dept 2016].
21. In the instant case, defendants were solely responsible tor causing the accident.
Plaintiffs was free from culpable conduct. No competing inferences could be drawn.
22. The of plaintiffelearly establishes thatshe was an innocent passenger in the
testimony
vehicle driven defendant Kassiem on East 86 Street at the location and the time of the accident
by
defendants'
which, as a result of negligence, caused her suffer severe injury.
23. Defendants cannot provide a non-negligent explanation for the collision thatoccurred,
nor can defendants offer theory of liabilitythat might support a finding that plaintiff was in any
any
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way responsible for and/or contributed to the instant accident.
24. Based upon the Affidavit of the plaintiff, the pleadings, the case law and statutes cited
herein, there is no viable defense that defendants could present. Thus, this Court should grant
plaintiffs'
motion for summary judgment on the issue of liability.
CONCLUSION
25. Based on the foregoing, it is respectfully submitted that this Court issue an Order
granting partial summary judgment in favor of plaintiff on the issue of liability,dismissing any and
defendants'
all of the affirmative defenses pled in Answer in regard to plaintifPs culpability and for
such other and further relief as this Court deems proper.
26. No previous application has been made to this Court for the specific relief sought
herein.
WHEREFORE, your Affirmant respectfully requests that the Court grant plaintiffs motion
in itsentirety, together with such other and further reliefas this Court deems just and proper.
Dated: New York, New York
Dated: February 28, 2020
DEBO vAH LARA
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Preview
FILED: NEW YORK COUNTY CLERK 04/08/2022 02:56 PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 04/08/2022 EXHIBIT A FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 53 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X TANYA MALLORY Index No. 452540/2015E Plaintiff, -against- THE CITY OF NEW YORK, ROBINSON S. KASSIEM, NOTICE OF MOTION JACOB A. RIVERS, CONSOLIDATED EDISON COMPANY OF NEW YORK, and VERIZON NEW YORK, INC. Defendant. ---------------------------------------------------------------------------X PLEASE TAKE NOTICE, that upon the annexed Affirmation of Deborah Lara, Esq. duly affirmed on February 28, 2020, and all pleadings and proceedings heretofore had herein, the undersigned will move this Court at the Submissions Part, Room 130, of the Courthouse located at 60 Centre Street, New York, New York, on the 30th day of March, 2020 or as soon thereafter as counsel can be heard for an Order pursuant to CPLR 3212 granting summary judgment as to defendants' liability in favor of the plaintiff, TANYA MALLORY, dismissing affirmative defenses of culpable conduct and for such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are to be served upon the undersigned not less than seven (7) days prior to the return date herein. Dated: February 28, 2020 New York, New York PARIS & HAIKIN, PLLC BY: Debor a a, Esq. Attorneys for Plaintiff 14 Penn Plaza, Suite 2202 New York, New York 10122 212-722-0476 1 of 2 FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 53 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 To: Arron Washington-Childs, Esq. Zachary Carter, Esq. Law Department, CITY OF NEW YORK 100 Church St. New York, NY 10007 Michael McNulty, Eq. CON ED, Law Department 4 Irving Place New York, NY 10003 Harold Rosengarten, Esq. Obermayer Rebmann et al Attorneys for VERIZON 521 Fifth 34th flor Ave., New York, NY 10175 Desena & Sweeny Attorneys for ROBINSON S. KASSIEM, JACOB A. R1VERS 138-32 Veteran's Memorial Highway Hauppauge, NY 11788 2 of 2 FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 54 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -_-----_----,...-_____________---------__________________---------------------X TANYA MALLORY Index No. 452540/2015E Plaintiff, -against- THE CITY OF NEW YORK, ROBINSON S. KASSIEM, AFFIRMATION JACOB A. RIVERS, CONSOLIDATED EDISON COMPANY OF NEW YORK, and VERI70N NEW YORK , INC. Defendant. ------------------------------------------------------------x Deborah Lara, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, duly affirms the truth of the following: 1. I am a member ofParis & Chaikin, PLLC, attorneys for plaintiffs and as such am fully familiar with the facts and circumstances surrounding this action. plaintiffs' 2. I respect fully submit this Affirmation in support of motion, which seeks an Order pursuant to the CPLR 3212 granting summary judgment in favor of plaintiff, Tanya Mallory on the issue of liabilityagainst defendants THE CITY OF NEW YORK, ROBINSON S. KASSIEM, JACOB A. RIVERS, CONSOLIDATED EDISON COMPANY OF NEW YORK, and VERIZON defendants' NEW YORK, INC., dismissing affirmative defenses of culpable conduct as to plaintiff and for such other and further relief as this Court deems just and proper. RELEVANT FACTUAL AND PROCEDURAL HISTORY 3. This is an action for personal injuries sustained by plaintiff on October 2, 2013 due to the negligence of the defendants. The Police Report is annexed hereto as Exhibit "A". 4. At said time and place, plaintiff was a passenger in the vehicle owned by defendant 1 of 6 FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 54 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 Rivers and operated by defendant Kasseirn when said vehicle was caused to come into sudden violent contact with a defect in the roadway owned, operated, maintained, created and controlled by defendants City of New York, Consolidated Edison Company and Verizon New York. As a result ofthe impact plaintiff was caused to be thrown around and make contact with the interior of the vehicle, the deployed airbags and flying glass. defendants' 5. As a result of negligence, plaintiff was caused to sustain severe and permanent injuries including, but not limited to, her right knee, neck, back, face and right shoulder. Plaintiffs' Affidavit is annexed hereto as Exhibit "B". 6. The instant action was commenced against defendants City of New York Robinson S. Kasseim and Jacob A. Rivers by service of Summons and Veri0ed Complaint on December 31, 2014. A Summons and Verified Complaint was thereafter served on defedants Con Edison and Verizon on August 22. 2016. See Exhibit "C". Defendants interposed Answers which are annexed hereto as Exhibit "D". 7. Plaintiff served a Bill of Particulars on March 1, 2018, A Supplemental Verified Bill of Pariculars on January 7, 2019 and a Second Supplemental Bill of Particulars on January 25, 2019 copies of which are annexed hereto as Exhibit "E". 8. By Order dated August 1, 2017 case under Index numbers 157104/16 and 301833/14 were consolidated under index number 452540/15 in the Supreme Court, New York County. Said Order is annexed hereto as Exhibit "F". By Order dated April 15, 2015 the Matter of Tanya Mallory v. The City of New York, Kasseim and Rivers, Index No. 20005/15E was transferred from Bronx County to New York County. See Exhibit "G". 9. Plaintiffnow moves for an Order granting summary judgment in favor ofplaintiffon the issue of liability. 2 of 6 FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 54 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 STANDARD FOR SUMMARY JUDGMENT 10. Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues. Andre v. Pomerov, 35 N.Y.2d 361, 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974). I1. On a motion for summary judgment the Court must accept the non-moving party's allegations as true and leave for the trial issues of credibility. It iswell settled that issue finding, as opposed to issue determination, is key to summary judgment. Krupp v. Aetna Life & Cas. Co., 103 A.D. 2d 252, 479 N.Y.S.2d 992. 12. It iswell settled that on a motion for summary judgment, the facts must be viewed in a light most favorable to the non-moving party and the non-moving party must be given the benefit of every reasonable inference. Rust v. Rever, 91 N.Y.2d 355, 670 N.Y.S.2d 822 (1998); (2"d Cunneen v. Square Plus Operatine Corp., 249 A.D.2d 258, 671 N.Y.S.2d 284 Dept. 1998); (2"d Secof v. Greens Condominium, 158 A.D.2d 591, 551 N.Y.S.2d 563 Dept. 1990); and Nicastro (2"d v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184 Dept. 1985). 13. Furthermore, the burden of proof rests upon the moving party to set forth facts to establish cause sufficient to warrant judgment as a matter of law. Lamberta L evidentiary Long Island Railroad, 51 A.D.2d 730, 379 N.Y.S.2d 139 (2d Dept. 1976). In granting an application for judgment as a matter of law, the trial court must determine that by no rational process could the trier of fact find in favor of the nonmoving party on the evidence. Noves v. Gallen, 267 A.D.2d 365, 700 N.Y.S.2d 73 (2d. Dept. 1999). In considering such a motion, the evidence must be construed in the light most favorable to the nonmoving party. and the motion should not be granted where the facts are in dispute, where different inferences may be drawn from the or where the of the witnesses is in question Noves v. Gallen supra. evidence, credibility 3 of 6 FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 54 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 14. Even where there are discrepancies or contradictions in witness testimony, "the facts." significance of weakness and discrepancies are all issues for the trier of Pedone v. B&B (2"d liquipment Co., 239 A.D.2d 397, 662 N.Y.S.2d 766 Dept. 1997); see a/so Bernstein v. Red (P" \pple Supermarkets, 227 A.D.2d 262, 642 N.Y.S.2d 303 Dept. 1996). 15. Summary judgment must not be granted unless itis clear that by no rational process can the jury find in favor of the non-moving party. O'Neill v. Port Authority of New York and (2"d New Jersey, 1 1 1 A.D.2d 616, 489 N.Y.S.2d 585 Dept. 1985). PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY AS A MATTER OF LAW 16. Notwithstanding the fact that summary judgment is a drastic remedy, itis now well settled in New York that in negligence actions, summary judgment in favor of plaintiff iswarranted where the defendant's own conduct inculpates him. Ugarizza v. Schmieder, 46 N.Y.2d 471 (I979); Andre v. Pomeroy: 35 N.Y.S.2d 361 (1974); Gerard v. Intelese, 1 1 A.D.2d 381 (1960); Siegel, Practice Commentaries, CPER 3212: pp 104-105 (McK Supp). 17. In Terranella v. Cohen, 491 N.Y.S.2d 71 1, it was succinctly held that it is negligence as a matter of law where defendant's liability is clear, unless there is a trueexcuse. The Court of Appeals has held that summary judgment in a negligence action will be granted to plaintiff where there is no conflict at all in the evidence, the defendant's conduct falls below reasonable care and plaintiff's conduct is not causally involved. Heimrich v. Stevens. 67 A.D.2d 1093, 415 (40' N.Y.S.2d 158 Dept 1979). 18. The defendant must submit proof in evidentiary form sufficient to establish factual issues requiring a trial for their resolution. Zuckerman v. City of New York. 49 N.Y.S.2d 320; State Bank of Albany v. VlcAuliffe, 97 A.D.2d 607, 467 N.Y.S.2d 944, 945. The defendant must 4 of 6 FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 54 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 lay bare and reveal his proof in order to show that matters set up in his answer are real and can be established at trial. Falchook Markets Inc. v. Warner Reciprocal insurers. 54 A.D.2d 831, 388 N.Y.S.2d 100. Conclusory and fanciful allegations are insufficient to defeat a motion for summary judgment. Maver v. McBruninan Construction Corp.. 105 A.D.2d 774, 481 N.Y.S.2d 719,720. movants' Furthermore, facts appearing in the papers, which the opposing part does not controvert, may be deemed to be admitted. John William Costello Associates. Inc.. v. Standard Metals Cor!L (15 99 A.D.2d 227, 472 N.Y.S.2d 325, 326 Dept. 1984). 19. It has been held that a passenger of a vehicle involved in an accident with another vehicle is entitled to partial summary judgment on issue of liability regardless of which driver is at faultas an innocent passenger could not possibly be found at faultunder either driver's version of the (15 accident. See Garcia v. Tri-County Ambulette Service, Inc., 282 A.D.2d 206, 723 N.Y.S.2d 163 Dept., 2011). The right ofan innocent passenger involved in a vehicle accidentro summary judgment in a personal injury action is not in any way restricted by potential issues of comparative negligence as between the drivers of the vehicles. ld. defendants' 20. Further, an innocent passenger is entitled to dismissal of affirmative [1" defense(s) of comparative fault. Oluwatayo v.Dulinayan, 142 AD3d 113 Dept 2016]. 21. In the instant case, defendants were solely responsible tor causing the accident. Plaintiffs was free from culpable conduct. No competing inferences could be drawn. 22. The of plaintiffelearly establishes thatshe was an innocent passenger in the testimony vehicle driven defendant Kassiem on East 86 Street at the location and the time of the accident by defendants' which, as a result of negligence, caused her suffer severe injury. 23. Defendants cannot provide a non-negligent explanation for the collision thatoccurred, nor can defendants offer theory of liabilitythat might support a finding that plaintiff was in any any 5 of 6 FILED: NEW YORK COUNTY CLERK 03/02/2020 04/08/2022 10:18 02:56 AM PM INDEX NO. 452540/2015 NYSCEF DOC. NO. 54 132 RECEIVED NYSCEF: 03/02/2020 04/08/2022 way responsible for and/or contributed to the instant accident. 24. Based upon the Affidavit of the plaintiff, the pleadings, the case law and statutes cited herein, there is no viable defense that defendants could present. Thus, this Court should grant plaintiffs' motion for summary judgment on the issue of liability. CONCLUSION 25. Based on the foregoing, it is respectfully submitted that this Court issue an Order granting partial summary judgment in favor of plaintiff on the issue of liability,dismissing any and defendants' all of the affirmative defenses pled in Answer in regard to plaintifPs culpability and for such other and further relief as this Court deems proper. 26. No previous application has been made to this Court for the specific relief sought herein. WHEREFORE, your Affirmant respectfully requests that the Court grant plaintiffs motion in itsentirety, together with such other and further reliefas this Court deems just and proper. Dated: New York, New York Dated: February 28, 2020 DEBO vAH LARA 6 of 6