Preview
FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-----------------------··------------X Index No.:35565/20E
LUIS ALVAREZ MARTINEZ,
Plaintiff, AFFIRMATION IN SUPPORT
-against··
STERLING RODRIGUEZ BRITO, DARLENE
ACOSTA, ALEXANDER CEBALLOS MONTAS &
AMERICAN UNITED TRANSPOltTATION, INC.,
Defendants.
_______________________..---_________Ç
TIMOTHY M. SULLIVAt!, an attorney duly admitted to practice
law in the Courts of the State of New York, duly affirms the
following under the penalties of perjury pursuant to CPLR §2106:
1. I am attorney for plaintiff, LUIS ALVAREZ MARTINEZ ,
and as such I am fully amiliar with the facts and circumstances
of the facts herein based upon the file maintained by my office.
2. This affirmat:.on is respectfully submitted in support
of plaintiff's motion for an Order awarding plaintiff Summary
Judgment pursuant to CPLR §3212 on the issue of liability
against defendants on tt e grounds that defendants have failed to
raise any issues of faci with regard to the issue of liability
defendants'
dismissing iffirmative defenses of comparative
negligence and culpable conduct herein and for such other,
further and different relief as this Court deems just and
proper.
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NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023
3. Plaintiff passenger, LUIS ALVAREZ MARTINEZ, filed the
within action alleging he suffered severe and serious personal
injuries as a result of the negligence of defendants following a
motor vehicle accident that occurred on September 15, 2020 in
Bronx County, New York. Issue was joined by Defendants shortly
parties'
thereafter. Copies of the pleadings are annexed hereto
and made a part hereof of Exhibit "A".
4. On September 15, 2020, plaintiff, LUIS ALVAREZ
MARTINEZ was a passenger in a motor vehicle operated by
defendant, ALEXANDER CEB1LLLOS MONTAS, and owned by defendant,
AMERICAN UNITED TRANSPORTATION, INC., which was involved in a
motor vehicle accident with a vehicle operated by defendant,
STERLIING RODRIGUEZ BRIT), and owned by defendant, DARLENE
ACOSTA at the intersectiMn of Marion Avenue and Crotona Park
North in Bronx County, NMw York. A duly executed and sworn
affidavit from plaintiff affirming same is annexed hereto and
made a part hereof as Ex1ibit "B".
5. As evidenced bf plaintiff's affidavit, the
intersection of Marion Avenue and Crotona Park North in Bronx
County is controlled by a stop sign for traffic on Marion Avenue
only. Plaintiff, a passenger in the vehicle operated by
defendant, ALEXANDER CEBLLLOS MONTAS, and was traveling south on
Marion Avenue when he at:empted to drive across Marion Avenue's
MARTINEZ, LUIS SJM LIABILITY PASSENGER
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FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023
intersection with Crotona Park North causing a collision with
the vehicle operated by defendant, STERLIING RODRIGUEZ BRITO,
as it was traveling east on Crotona Park North across its
intersection with Marion Avenue.
"C"
6. Attached hereto as Exhibit is a certified copy of
the police accident report. The aforementioned police report
states that the vehicle aperated by defendant, ALEXANDER
CEBALLOS MONTAS, stopped at the stop sign at the subject
intersection when he then attempted to proceed leading to the
collision. As such the fault codes on the police report
indicate that defendant, ALEXANDER CEBALLOS MONTAS, was
responsible for the happening of the collision due to his
failure to yield to defendant operator STERLIING RODRIGUEZ
BRITO. See box 21 code 7 of Exhibit "C".
7. As the court is well aware, Section 1140 of the New
York State Vehicle & Traffic Law provides that the driver of a
vehicle approaching an intersection shall yield the right of way
to a vehicle which has entered the intersection from a different
roadway. Section 1142(a) provides that a vehicle approaching a
stop sign shall stop and after stopping "shall yield the right
of way to any vehicle which has entered the intersection from
another highway or which is approaching so closely on said
highway as to constitute an immediate hazard during the time
MARTINEZ, LUIS SJM LIABILITY PASSENGER
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NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023
when such driver is moving across the intersection".
8. It is well settled law that when a driver approaches
an intersection with a stop sign fails to yield the right of way
to another driver who approaches the same intersection without a
stop sign or other traffic control device he violates Section
1140 of the VTL and is thereby negligent as a matter of law.
See Nevarez v S.R.M. Mgt 58 AD3d 295 (1st Dept. 2009).
Corp.,
9. As held by the Appellate Division a "violation of
negligence"
traffic law, absent an excuse, constitutes and
negligence"
establishes a "prima facie case of on behalf of a
plaintiff shifting the burden to defendant to "produce
evidentiary proof in admissible form that there are material
issue of fact sufficient to require a trial". See Delgado v
Martinez 113 A.D.3d 426 (1st Dept. 2014).
Family Auto,
10. Lastly, and pechaps most importantly plaintiff was an
innocent passenger which entitles him to summary judgment on the
issue of liability against the involved defendants herein.
Furthermore, plaintiff's right to summary judgment on the issue
of liability is not in aly way restricted by potential issues of
comparative negligence between the drivers of the involved
vehicles. Accordingly, plaintiff, LUIS ALVAREZ MARTINEZ, should
be awarded summary judgment on the issue of liability as a
matter of law. See, Johnson v. Phillips, 261 A.D. 2d 269, 690
MARTINEZ, LUIS SJM LIABILITY PASSENGER
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NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023
N.Y.S. 2d 5 4 5.
WHEREFORE, it is respectfully requested that plaintiff's
motion for summary judgment on the issue of liability against
defendants'
the defendants herein be granted, that affirmative
defenses of comparative negligence and culpable conduct be
dismissed in its entirety and for such other, further and
different relief as this Court deems just and proper.
Dated: New York, New York
January 18, 2023
Timothy M. Sullivan
MARTINEZ, LUIS SJM LIABILITY PASSENGER
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NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023
SUPREME COURT OF THE STATE OE NEW YORK
COUNTY OF BRONX
____________________________________Ç
LUIS ALVAREZ MARTINEZ,
Index No.:35565/20E
Plaintiff,
-against- WORD COUNT CERTIFICATION
STERLING RODRIGUEZ BRITO, DARLENE
ACOSTA, ALEXANDER CEBALLOS MONTAS &
AMERICAN UNITED TRANSPORTATION, INC.,
Defendants.
____________________________________Ç
Pursuant to Uniform Trial Court Rule Section 202.8 I hereby
certify that the within motion complies with the word count
limit of 7,000 words and the :otal number of words is 1,195
pursuant to the word processi g system used to prepare the
document.
Dated: New York, New York
January 18, 2023
Timothy M. Sullivan
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Preview
FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -----------------------··------------X Index No.:35565/20E LUIS ALVAREZ MARTINEZ, Plaintiff, AFFIRMATION IN SUPPORT -against·· STERLING RODRIGUEZ BRITO, DARLENE ACOSTA, ALEXANDER CEBALLOS MONTAS & AMERICAN UNITED TRANSPOltTATION, INC., Defendants. _______________________..---_________Ç TIMOTHY M. SULLIVAt!, an attorney duly admitted to practice law in the Courts of the State of New York, duly affirms the following under the penalties of perjury pursuant to CPLR §2106: 1. I am attorney for plaintiff, LUIS ALVAREZ MARTINEZ , and as such I am fully amiliar with the facts and circumstances of the facts herein based upon the file maintained by my office. 2. This affirmat:.on is respectfully submitted in support of plaintiff's motion for an Order awarding plaintiff Summary Judgment pursuant to CPLR §3212 on the issue of liability against defendants on tt e grounds that defendants have failed to raise any issues of faci with regard to the issue of liability defendants' dismissing iffirmative defenses of comparative negligence and culpable conduct herein and for such other, further and different relief as this Court deems just and proper. 1 of 6 FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023 3. Plaintiff passenger, LUIS ALVAREZ MARTINEZ, filed the within action alleging he suffered severe and serious personal injuries as a result of the negligence of defendants following a motor vehicle accident that occurred on September 15, 2020 in Bronx County, New York. Issue was joined by Defendants shortly parties' thereafter. Copies of the pleadings are annexed hereto and made a part hereof of Exhibit "A". 4. On September 15, 2020, plaintiff, LUIS ALVAREZ MARTINEZ was a passenger in a motor vehicle operated by defendant, ALEXANDER CEB1LLLOS MONTAS, and owned by defendant, AMERICAN UNITED TRANSPORTATION, INC., which was involved in a motor vehicle accident with a vehicle operated by defendant, STERLIING RODRIGUEZ BRIT), and owned by defendant, DARLENE ACOSTA at the intersectiMn of Marion Avenue and Crotona Park North in Bronx County, NMw York. A duly executed and sworn affidavit from plaintiff affirming same is annexed hereto and made a part hereof as Ex1ibit "B". 5. As evidenced bf plaintiff's affidavit, the intersection of Marion Avenue and Crotona Park North in Bronx County is controlled by a stop sign for traffic on Marion Avenue only. Plaintiff, a passenger in the vehicle operated by defendant, ALEXANDER CEBLLLOS MONTAS, and was traveling south on Marion Avenue when he at:empted to drive across Marion Avenue's MARTINEZ, LUIS SJM LIABILITY PASSENGER 2 of 6 FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023 intersection with Crotona Park North causing a collision with the vehicle operated by defendant, STERLIING RODRIGUEZ BRITO, as it was traveling east on Crotona Park North across its intersection with Marion Avenue. "C" 6. Attached hereto as Exhibit is a certified copy of the police accident report. The aforementioned police report states that the vehicle aperated by defendant, ALEXANDER CEBALLOS MONTAS, stopped at the stop sign at the subject intersection when he then attempted to proceed leading to the collision. As such the fault codes on the police report indicate that defendant, ALEXANDER CEBALLOS MONTAS, was responsible for the happening of the collision due to his failure to yield to defendant operator STERLIING RODRIGUEZ BRITO. See box 21 code 7 of Exhibit "C". 7. As the court is well aware, Section 1140 of the New York State Vehicle & Traffic Law provides that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different roadway. Section 1142(a) provides that a vehicle approaching a stop sign shall stop and after stopping "shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time MARTINEZ, LUIS SJM LIABILITY PASSENGER 3 of 6 FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023 when such driver is moving across the intersection". 8. It is well settled law that when a driver approaches an intersection with a stop sign fails to yield the right of way to another driver who approaches the same intersection without a stop sign or other traffic control device he violates Section 1140 of the VTL and is thereby negligent as a matter of law. See Nevarez v S.R.M. Mgt 58 AD3d 295 (1st Dept. 2009). Corp., 9. As held by the Appellate Division a "violation of negligence" traffic law, absent an excuse, constitutes and negligence" establishes a "prima facie case of on behalf of a plaintiff shifting the burden to defendant to "produce evidentiary proof in admissible form that there are material issue of fact sufficient to require a trial". See Delgado v Martinez 113 A.D.3d 426 (1st Dept. 2014). Family Auto, 10. Lastly, and pechaps most importantly plaintiff was an innocent passenger which entitles him to summary judgment on the issue of liability against the involved defendants herein. Furthermore, plaintiff's right to summary judgment on the issue of liability is not in aly way restricted by potential issues of comparative negligence between the drivers of the involved vehicles. Accordingly, plaintiff, LUIS ALVAREZ MARTINEZ, should be awarded summary judgment on the issue of liability as a matter of law. See, Johnson v. Phillips, 261 A.D. 2d 269, 690 MARTINEZ, LUIS SJM LIABILITY PASSENGER 4 of 6 FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023 N.Y.S. 2d 5 4 5. WHEREFORE, it is respectfully requested that plaintiff's motion for summary judgment on the issue of liability against defendants' the defendants herein be granted, that affirmative defenses of comparative negligence and culpable conduct be dismissed in its entirety and for such other, further and different relief as this Court deems just and proper. Dated: New York, New York January 18, 2023 Timothy M. Sullivan MARTINEZ, LUIS SJM LIABILITY PASSENGER 5 of 6 FILED: BRONX COUNTY CLERK 01/18/2023 09:54 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 01/18/2023 SUPREME COURT OF THE STATE OE NEW YORK COUNTY OF BRONX ____________________________________Ç LUIS ALVAREZ MARTINEZ, Index No.:35565/20E Plaintiff, -against- WORD COUNT CERTIFICATION STERLING RODRIGUEZ BRITO, DARLENE ACOSTA, ALEXANDER CEBALLOS MONTAS & AMERICAN UNITED TRANSPORTATION, INC., Defendants. ____________________________________Ç Pursuant to Uniform Trial Court Rule Section 202.8 I hereby certify that the within motion complies with the word count limit of 7,000 words and the :otal number of words is 1,195 pursuant to the word processi g system used to prepare the document. Dated: New York, New York January 18, 2023 Timothy M. Sullivan 6 of 6