Preview
FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
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LUIS ALVAREZ MARTINEZ, AFFIRMATION IN OPPOSITION
Plaintiff
- against - Index No. 35565/2020E
STERLING RODRIGUEZ BRITO, DARLENE ACOSTA,
ALEXANDER CEBALLOS MONTAS & AMERICAN UNITED
TRANSPORTATION INC.,
Defendants
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I, Martha E. Donovan, Esq., an attorney affirm the truth of the following under penalties
of perjury and pursuant to the CPLR:
1. I am associated with Law Office of Dennis C. Bartling, attorneys for the
defendants, Sterling Rodriguez Brito and Darlene Acosta, and as such, I am fully familiar with all
the facts and circumstances of this matter. This affirmation is based upon my participation in
the case upon information and belief, the source being the legal file.
2. I submit this affirmation in opposition to plaintiff’s summary judgment motion as
plaintiff failed to meet his burden to demonstrate that the defendants, Sterling Rodriguez Brito
and Darlene Acosta were negligent as a matter of law and his motion must be denied.
3. Defendants, Sterling Rodriguez Brito and Darlene Acosta are filing their own
motion for summary judgment on the issue of liability as they had the right of way at the
intersection and were entitled to assume that the codefendant would yield that right of way. As
will be discussed below, codefendant’s failure to yield the right of way was negligent as a
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matter of law and the sole proximate cause of the instant accident. There is no evidence of any
negligence on the part of defendant Sterling Rodriguez Brito and Darlene Acosta.
4. Administrative Order 141/22 of the Chief Administrative Judge of the Courts
amended the rule requiring the inclusion of statements of material facts when moving for
summary judgment. The statements are no longer mandatory but are now required only if the
Court directs (see Uniform Court Rule 202.8-g, see also Administrative Order 141/22, Effective
July 1, 2022).1 Plaintiff filed the motion for summary judgment on January 18, 2023, six months
after the amendment (Notice of Motion - NYSECF No. 13). As this Court's rules do not currently
direct its inclusion, no response to plaintiff's statement of material facts is submitted with this
motion. However, should such rules be amended, and the Court requires the submission of
such a response and counterstatement, your affirmant respectfully requests time to submit
same upon such direction.
AFFIDAVIT OF STERLING RODRIGUEZ BRITO
5. Defendant Sterling Rodriguez Brito submits his sworn affidavit in opposition to
plaintiff’s motion. His affidavit is attached as Exhibit A. Mr. Brito testified in relevant part as
follows:
a. On September 15, 2020 he was traveling southeast on Crotona Park North.
(¶ 2)
b. Crotona Park North is a one-way roadway. (¶ 2)
c. This accident occurred at the intersection of Crotona Park North with
Marmion Avenue. It is a “T” intersection. (¶ 3)
1
Administrative Order 141/22 can be found here:
https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-141-22.pdf
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d. He did not have any traffic control device such as a stop sign or stop light on
Crotona Park. (¶ 4)
e. Vehicles approaching from Marmion Avenue were subject to a stop sign. (¶
4)
f. Suddenly and without warning, a taxi ran the stop sign on Marmion Avenue
and hit his vehicle on its left, driver’s side. (¶ 5)
g. He could not avoid the accident because there was parking on both sides of
Crotona Park North. (¶ 6)
PLAINTIFF FAILED TO MEET HIS BURDEN
AND DID NOT ESTABLISH, PRIMA FACIE, THAT DEFENDANT
WAS NEGLIGENT AND IS LIABLE AS A MATTER OF LAW
6. The operator of the vehicle with the right of way still has a legal duty to observe.
That duty is that he must not act recklessly. Essentially this means that the operator will be free
from negligence in almost any circumstance. The general exception is the situation where the
driver with the right of way enters the intersection aware that the other vehicle will not stop.
Otherwise, the operator may rely on the statute and is solely under a duty to anticipate that the
other vehicle will yield the right of way. (Gravina v Wakschal, 255 AD2d 291 [2d Dept 1998];
Bisogna v Economos, 42 AD3d 347 [1st Dept 2007]).
7. In Jenkins v Alexander, a motorist who collided with a van, after the van ran a
stop sign, was not negligent regardless of whether she failed to look before entering the
intersection. (9 AD3d 286 [1st Dept 2004]). The van driver was exclusively negligent as a matter
of law for failing to stop at stop sign. The motorist had the right of way and no duty to watch
for and avoid a driver who might fail to stop at a stop sign. Id. In Namisnak v Martin, it was held
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that a driver's negligence in either failing to stop at stop sign or failing to yield right of way was
the sole proximate cause of a collision with a truck, even if the truck was speeding. (244 AD2d
258 [1st Dept 1997]).
8. The law is clear. A driver has no duty to watch out for and avoid a driver who
might fail to stop or to proceed with due caution at a stop sign. (Perez v Brux Cab Corp., 251
AD2d 157 [1st Dept 1998]; Luke v. McFadden, 119 AD3d 533 [2d Dept 2014]).
9. A driver with the right of way is entitled to anticipate that other motorists will
obey traffic laws that require them to yield. (Bullock v Calabretta, 119 AD3d 884 [2d Dept
2014]; Jordan v. City of New York, 12 AD3d 326 [1st Dept 2004]).
10. The unexcused failure to observe the statutory standard of care is negligence per
se. (Martin v Herzog, 228 NY 164 [1920]; Dalal v. City of New York, 262 AD2d 596 [2d Dept
1999]).
11. New York State case law recognizes there is no liability on a driver of a motor
vehicle who was struck by a vehicle that failed to yield the right of way.
12. Here plaintiff has not established any negligence on the part of defendants
Sterling Rodriguez Brito and Darlene Acosta. Indeed, in his affidavit, plaintiff acknowledges that
his taxi driver’s direction of travel was controlled by a stop sign. Plaintiff also submits the police
accident report in which the officer notes the only fault code for the happening of this accident
as against codefenant Alexander Bebollos Montas, due to his failure to yield the right of way.
(See Pl.’s Ex. C) These facts merely establish negligence as a matter of law as against
codefendant. Plaintiff points to absolutely no negligent act on the part of defendants Sterling
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Rodriguez Brito or Darlene Acosta. As such, plaintiff fails to meet his burden to demonstrate
liability as pertains to defendants Sterling Rodriguez Brito and Darlene Acosta.
13. However, even if this court disagrees and finds that plaintiff met his burden on
summary judgment, defendant Sterling Rodriguez Brito raises a question of fact through
submission of his own affidavit that details that he did not have any traffic control devices, he
had the right of way through the intersection and was hit by codefendant suddenly and without
warning and there was nothing he could do to avoid this accident because of the parked
vehicles on both sides of Crotona Park North. (See Exhbit A). Defendant’s affidavit creates
questions of fact sufficient to require denial of plaintiff’s motion as against defendants Sterling
Rodriguez Brito and Darlene Acosta.
WHILE PASSENGER PLAINTIFF MAY BE
ENTITLED TO A SUMMARY DETERMINATION OF HIS OWN
LACK OF LIABILITY; PLAINTIFF IS NOT ENTITLED TO
SUMMARY JUDGMENT AS AGAINST DEFENDANT
14. While the Court may decide to grant plaintiff’s motion solely to the extent that
the defendants’ affirmative defenses as to the plaintiff’s own culpable conduct may be stricken,
plaintiff is not entitled to summary judgment on the issue of liability as against defendants
Sterling Rodriguez Brito and Darlene Acosta.
15. There is a significant distinction between granting a plaintiff summary judgment
on her lack of culpable conduct on liability and granting a plaintiff summary judgment on a
defendant's negligence." Oluwatayo v Dulinayan, 142 AD3d 113, 117 (1st Dept 2016).
16. While a plaintiff may be entitled to a determination that he or she had no
culpable conduct on the issue of liability for the accident, such a determination of freedom
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from culpability must not be conflated with the separate and unresolved issue of defendants'
negligence. Oluwatayo, supra.
17. A motion court is permitted pursuant to CPLR 32l2(g) "to limit issues of fact for
trial, by specifying which facts are not in dispute or are incontrovertible, and such facts shall be
deemed established for all purposes in the action" Oluwatayo, supra.
18. In the instant case, as discussed above, defendants Sterling Rodriguez Brito and
Darlene Acosta were not negligent as Mr. Brito had no traffic control device, had the right of
way through the intersection and was entitled to assume codefendant would yield that right of
way. There is no evidence anywhere in the record to support a finding of any negligence as
against defendants Sterling Rodriguez Brito and Darlene Acosta.
SUMMARY JUDGMENT IS A DRASTIC REMEDY
19. Summary judgment is a "drastic remedy and should not be granted where there
is any doubt as to the existence of a triable issue." Rotuba Extruder, Inc. v. Ceppor, 46 NY2d 223
(1978); Moskowitz v Garloc, 23 AD2d 9343; Friends of Animals, Inc. v. Associated Fur
Manufacturers, Inc., 46 NY2d 1065 (1979).
20. When deciding a summary judgment motion, the Court must construe the facts
in the light most favorable to the non-moving party. Marine Midland Bank N.A. v. Dino & Artie's
Automatic Transmission Co., 168 AD2d 610 (2d Dept. 1990); Rebecchi v. Whitemore, 172 AD2d
600 (2d Dept. 1991). The Court must draw all reasonable inferences in favor of the party
opposing the motion and the opposing party's statements are deemed to be true, Pantote Big
Alpha Goods, Inc. v. Schefman, 121 AD2d 295 (1st Dept. 1986); Russell v. Barton Hepburn
Hospital, 154 AD2d 796 (3d Dept. 1989).
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21. When viewed in the light most favorable to the non-moving party, here plaintiff
has fallen far short of demonstrating a prima facie case of negligence as against defendants
Sterling Rodriguez Brito and Darlene Acosta, and plaintiff in fact advances absolutely no
evidence of any act or ommission on their part that may have caused or contributed to the
happening of this accident.
22. In conclusion, the plaintiff’s motion for summary judgment on the issue of
liability should be denied as plaintiff failed to meet his burden to establish any negligence on
the part of defendants Sterling Rodriguez Brito and Darlene Acosta.
WHEREFORE, it is respectfully requested that the plaintiff’s summary judgment motion
be denied and for such other and further relief as the Court deems just and proper.
Dated: Melville, New York
February 10, 2023
_____________________________
Martha E. Donovan, Esq.
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WORD COUNT CERTIFICATION
Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the
word count limit of 4,200 words set forth therein. The total number of words in this
Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature
blocks, is 1,741, pursuant to the word count in Microsoft Word, the word-processing system
used to prepare the document.
Dated: Melville, New York
February 10, 2023
_____________________________
Martha E. Donovan, Esq.
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Preview
FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------------------------------------x LUIS ALVAREZ MARTINEZ, AFFIRMATION IN OPPOSITION Plaintiff - against - Index No. 35565/2020E STERLING RODRIGUEZ BRITO, DARLENE ACOSTA, ALEXANDER CEBALLOS MONTAS & AMERICAN UNITED TRANSPORTATION INC., Defendants ------------------------------------------------------------------------x I, Martha E. Donovan, Esq., an attorney affirm the truth of the following under penalties of perjury and pursuant to the CPLR: 1. I am associated with Law Office of Dennis C. Bartling, attorneys for the defendants, Sterling Rodriguez Brito and Darlene Acosta, and as such, I am fully familiar with all the facts and circumstances of this matter. This affirmation is based upon my participation in the case upon information and belief, the source being the legal file. 2. I submit this affirmation in opposition to plaintiff’s summary judgment motion as plaintiff failed to meet his burden to demonstrate that the defendants, Sterling Rodriguez Brito and Darlene Acosta were negligent as a matter of law and his motion must be denied. 3. Defendants, Sterling Rodriguez Brito and Darlene Acosta are filing their own motion for summary judgment on the issue of liability as they had the right of way at the intersection and were entitled to assume that the codefendant would yield that right of way. As will be discussed below, codefendant’s failure to yield the right of way was negligent as a 1 of 8 FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 matter of law and the sole proximate cause of the instant accident. There is no evidence of any negligence on the part of defendant Sterling Rodriguez Brito and Darlene Acosta. 4. Administrative Order 141/22 of the Chief Administrative Judge of the Courts amended the rule requiring the inclusion of statements of material facts when moving for summary judgment. The statements are no longer mandatory but are now required only if the Court directs (see Uniform Court Rule 202.8-g, see also Administrative Order 141/22, Effective July 1, 2022).1 Plaintiff filed the motion for summary judgment on January 18, 2023, six months after the amendment (Notice of Motion - NYSECF No. 13). As this Court's rules do not currently direct its inclusion, no response to plaintiff's statement of material facts is submitted with this motion. However, should such rules be amended, and the Court requires the submission of such a response and counterstatement, your affirmant respectfully requests time to submit same upon such direction. AFFIDAVIT OF STERLING RODRIGUEZ BRITO 5. Defendant Sterling Rodriguez Brito submits his sworn affidavit in opposition to plaintiff’s motion. His affidavit is attached as Exhibit A. Mr. Brito testified in relevant part as follows: a. On September 15, 2020 he was traveling southeast on Crotona Park North. (¶ 2) b. Crotona Park North is a one-way roadway. (¶ 2) c. This accident occurred at the intersection of Crotona Park North with Marmion Avenue. It is a “T” intersection. (¶ 3) 1 Administrative Order 141/22 can be found here: https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO-141-22.pdf 2 of 8 FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 d. He did not have any traffic control device such as a stop sign or stop light on Crotona Park. (¶ 4) e. Vehicles approaching from Marmion Avenue were subject to a stop sign. (¶ 4) f. Suddenly and without warning, a taxi ran the stop sign on Marmion Avenue and hit his vehicle on its left, driver’s side. (¶ 5) g. He could not avoid the accident because there was parking on both sides of Crotona Park North. (¶ 6) PLAINTIFF FAILED TO MEET HIS BURDEN AND DID NOT ESTABLISH, PRIMA FACIE, THAT DEFENDANT WAS NEGLIGENT AND IS LIABLE AS A MATTER OF LAW 6. The operator of the vehicle with the right of way still has a legal duty to observe. That duty is that he must not act recklessly. Essentially this means that the operator will be free from negligence in almost any circumstance. The general exception is the situation where the driver with the right of way enters the intersection aware that the other vehicle will not stop. Otherwise, the operator may rely on the statute and is solely under a duty to anticipate that the other vehicle will yield the right of way. (Gravina v Wakschal, 255 AD2d 291 [2d Dept 1998]; Bisogna v Economos, 42 AD3d 347 [1st Dept 2007]). 7. In Jenkins v Alexander, a motorist who collided with a van, after the van ran a stop sign, was not negligent regardless of whether she failed to look before entering the intersection. (9 AD3d 286 [1st Dept 2004]). The van driver was exclusively negligent as a matter of law for failing to stop at stop sign. The motorist had the right of way and no duty to watch for and avoid a driver who might fail to stop at a stop sign. Id. In Namisnak v Martin, it was held 3 of 8 FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 that a driver's negligence in either failing to stop at stop sign or failing to yield right of way was the sole proximate cause of a collision with a truck, even if the truck was speeding. (244 AD2d 258 [1st Dept 1997]). 8. The law is clear. A driver has no duty to watch out for and avoid a driver who might fail to stop or to proceed with due caution at a stop sign. (Perez v Brux Cab Corp., 251 AD2d 157 [1st Dept 1998]; Luke v. McFadden, 119 AD3d 533 [2d Dept 2014]). 9. A driver with the right of way is entitled to anticipate that other motorists will obey traffic laws that require them to yield. (Bullock v Calabretta, 119 AD3d 884 [2d Dept 2014]; Jordan v. City of New York, 12 AD3d 326 [1st Dept 2004]). 10. The unexcused failure to observe the statutory standard of care is negligence per se. (Martin v Herzog, 228 NY 164 [1920]; Dalal v. City of New York, 262 AD2d 596 [2d Dept 1999]). 11. New York State case law recognizes there is no liability on a driver of a motor vehicle who was struck by a vehicle that failed to yield the right of way. 12. Here plaintiff has not established any negligence on the part of defendants Sterling Rodriguez Brito and Darlene Acosta. Indeed, in his affidavit, plaintiff acknowledges that his taxi driver’s direction of travel was controlled by a stop sign. Plaintiff also submits the police accident report in which the officer notes the only fault code for the happening of this accident as against codefenant Alexander Bebollos Montas, due to his failure to yield the right of way. (See Pl.’s Ex. C) These facts merely establish negligence as a matter of law as against codefendant. Plaintiff points to absolutely no negligent act on the part of defendants Sterling 4 of 8 FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 Rodriguez Brito or Darlene Acosta. As such, plaintiff fails to meet his burden to demonstrate liability as pertains to defendants Sterling Rodriguez Brito and Darlene Acosta. 13. However, even if this court disagrees and finds that plaintiff met his burden on summary judgment, defendant Sterling Rodriguez Brito raises a question of fact through submission of his own affidavit that details that he did not have any traffic control devices, he had the right of way through the intersection and was hit by codefendant suddenly and without warning and there was nothing he could do to avoid this accident because of the parked vehicles on both sides of Crotona Park North. (See Exhbit A). Defendant’s affidavit creates questions of fact sufficient to require denial of plaintiff’s motion as against defendants Sterling Rodriguez Brito and Darlene Acosta. WHILE PASSENGER PLAINTIFF MAY BE ENTITLED TO A SUMMARY DETERMINATION OF HIS OWN LACK OF LIABILITY; PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT AS AGAINST DEFENDANT 14. While the Court may decide to grant plaintiff’s motion solely to the extent that the defendants’ affirmative defenses as to the plaintiff’s own culpable conduct may be stricken, plaintiff is not entitled to summary judgment on the issue of liability as against defendants Sterling Rodriguez Brito and Darlene Acosta. 15. There is a significant distinction between granting a plaintiff summary judgment on her lack of culpable conduct on liability and granting a plaintiff summary judgment on a defendant's negligence." Oluwatayo v Dulinayan, 142 AD3d 113, 117 (1st Dept 2016). 16. While a plaintiff may be entitled to a determination that he or she had no culpable conduct on the issue of liability for the accident, such a determination of freedom 5 of 8 FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 from culpability must not be conflated with the separate and unresolved issue of defendants' negligence. Oluwatayo, supra. 17. A motion court is permitted pursuant to CPLR 32l2(g) "to limit issues of fact for trial, by specifying which facts are not in dispute or are incontrovertible, and such facts shall be deemed established for all purposes in the action" Oluwatayo, supra. 18. In the instant case, as discussed above, defendants Sterling Rodriguez Brito and Darlene Acosta were not negligent as Mr. Brito had no traffic control device, had the right of way through the intersection and was entitled to assume codefendant would yield that right of way. There is no evidence anywhere in the record to support a finding of any negligence as against defendants Sterling Rodriguez Brito and Darlene Acosta. SUMMARY JUDGMENT IS A DRASTIC REMEDY 19. Summary judgment is a "drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue." Rotuba Extruder, Inc. v. Ceppor, 46 NY2d 223 (1978); Moskowitz v Garloc, 23 AD2d 9343; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). 20. When deciding a summary judgment motion, the Court must construe the facts in the light most favorable to the non-moving party. Marine Midland Bank N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 (2d Dept. 1990); Rebecchi v. Whitemore, 172 AD2d 600 (2d Dept. 1991). The Court must draw all reasonable inferences in favor of the party opposing the motion and the opposing party's statements are deemed to be true, Pantote Big Alpha Goods, Inc. v. Schefman, 121 AD2d 295 (1st Dept. 1986); Russell v. Barton Hepburn Hospital, 154 AD2d 796 (3d Dept. 1989). 6 of 8 FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 21. When viewed in the light most favorable to the non-moving party, here plaintiff has fallen far short of demonstrating a prima facie case of negligence as against defendants Sterling Rodriguez Brito and Darlene Acosta, and plaintiff in fact advances absolutely no evidence of any act or ommission on their part that may have caused or contributed to the happening of this accident. 22. In conclusion, the plaintiff’s motion for summary judgment on the issue of liability should be denied as plaintiff failed to meet his burden to establish any negligence on the part of defendants Sterling Rodriguez Brito and Darlene Acosta. WHEREFORE, it is respectfully requested that the plaintiff’s summary judgment motion be denied and for such other and further relief as the Court deems just and proper. Dated: Melville, New York February 10, 2023 _____________________________ Martha E. Donovan, Esq. 7 of 8 FILED: BRONX COUNTY CLERK 02/10/2023 09:21 AM INDEX NO. 35565/2020E NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/10/2023 WORD COUNT CERTIFICATION Pursuant to Uniform Rules §202.8-b, I hereby certify that this Affirmation complies with the word count limit of 4,200 words set forth therein. The total number of words in this Affirmation, exclusive of any captions, tables of contents, tables of authorities and signature blocks, is 1,741, pursuant to the word count in Microsoft Word, the word-processing system used to prepare the document. Dated: Melville, New York February 10, 2023 _____________________________ Martha E. Donovan, Esq. 8 of 8