Preview
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_________________________________________________________________Ç
BRITTANY STEVENS, Index No.: 524933/2020
Plaintiffs, AFFIRMATION
IN SUPPORT AND
IN OPPOSITION
-against-
RIVAS CONSTRUCTION CORP., DAVID RIVAS
LUNA, EMMANUEL MORGAN, ALI GEORGE, INO
TRANSPORTATION CORP. AND MARINO RIVAS,
Defendants.
___________________________________________________________________Ç
BRYAN BARENBAUM, an attorney admitted to practice in the Courts of the State of
New York, affirms under penalties of perjury:
1. I am a member of the Law Offices of Bryan Barenbaum, attorneys for plaintiff,
BRITTANY STEVENS. As such and based on a review of the file maintained by my office, I
am familiar with the facts and circumstances set forth herein.
2. I submit this affirmation in support of plaintiff BRITTANY STEVENS'Cross-
(i)
Passenger"
Motion for Partial Summary Judgment pursuant to CPLR 3212 as an "Innocent on
the issue of liability and (ii) in opposition to the Motion for Summary Judgment by defendants
INO TRANSPORTATION CORP. AND MARINO RIVAS, and (iii) for such other relief as this
Court may deem just and proper.
3. This Affirmation is submitted with the following Exhibits:
"A"
Exhibit Affidavit of plaintiff, BRITTANY STEVENS
1 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
4. This is an action for bodily injury from a three-vehicle automobile chain accident
which took place on January 21, 2020. The accident involved Vehicle No. 1 owned and operated
by the defendants INO TRANSPORTATION CORP. AND MARINO RIVAS (hereafter the
"1NO"
defendants), Vehicle No. 2 owned and operated by defendants ALI GEORGE and
EMMANUEL MORGAN, and Vehicle No. 3 owned and operated by DAVID RIVAS LUNA
"A"
and RIVAS CONDSTRUCTION CORP. Exhibit ¶l.
5. Plaintiff BRITTANY STEVENS was a passenger in defendants INO
RIVAS'
TRANSPORTATION CORP. AND MARINO taxi at the time of the subject accident.
"A"
Exhibit ¶l.
6. The accident happened at the intersection of Eastern Parkway and Rockaway
Avenue. Prior to the accident, defendants INO TRANSPORTATION CORP. AND MARINO
RIVAS' "A"
taxi was proceeding on Eastern Parkway towards Rockaway Avenue. Exhibit ¶2.
7. The taxi approached the intersection at a speed of 35-40 mph. When the taxi
reached the intersection, the taxi came to a sudden short stop. After stopping short the taxi was
"A"
struck from behind. Exhibit ¶¶2-3.
8. Plaintiff sustained serious and permanent injuries as a result of the accident of
"A"
January 21, 2020. Exhibit ¶4.
9. Plaintiff commenced this action for bodily injury with the filing of a Summons
and Complaint on or about December 24, 2020. NYSCEF Doc. #1.
10. Issue was joined with defendants RIVAS CONSTRUCTION CORP. and DAVID
RIVAS LUNA with service of a Verified Answer with Cross-Claims on or about June 4, 2021.
NYSCEF Doc. #9.
2 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
11. Issue was joined with defendants EMMANUEL MORGAN and ALI GEORGE
with service of a Verified Answer on or about January 19, 2022. NYSCEF Doc. #13.
12. Issue was joined with defendants INO TRANSPORTATION CORP. and
MARINO RIVAS with service of a Verified Answer with Cross-Claim on or about January 19,
2022. NYSCEF Doc. #14.
13. A Preliminary Conference Order was issued on March 22, 2022. NYSCEF Doc.
#16.
14. A Compliance Conference Order was issued on September 26, 2022. NYSCEF
Doc. #28.
15. Discovery is in the initial phase. Depositions have not yet been held.
PLAINTIFF BRITTANY STEVENS, AN INNOCENT PASSENGER,
IS ENTITLED TO PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY
16. Plaintiff, BRITTANY STEVENS, is entitled to partial Summary Judgment on the
issue of liability. An innocent passenger, who is free of responsibility for the happening of an
accident, is entitled to partial Summary Judgment on the issue liability. Medina v. Rodriguez, 92
(2nd
A.D.3d 850, 939 N.Y.S.2d 514 Dep't 2012); Mello v. Narco Cab Corp., 105 A.D.3d 634,
(1st
963 N.Y.S.2d 581 Dep't 2013).
17. The right of an innocent passenger to Summary Judgment in a negligence action
arising out of an automobile collision is not restricted by questions of comparative negligence
which may exist between the drivers of vehicles involved in the accident. Questions of
apportionment of responsibility as between the operators of the vehicles involved in an accident
3 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
plaintiffs'
do not affect entitlement to summary judgment. Silberman v. Surrey Cadillac
(2"d
Limousine Service, 109 A.D.2d 833, 486 N.Y.S.2d 357 Dep't 1985).
18. Plaintiff, BRITTANY STEVENS, was a passenger in the vehicle owned and
operated by defendants INO TRANSPORTATION CORP. AND MARINO RIVAS at the time
"A"
of the accident. Exhibit ¶l.
19. As such, plaintiff, an "Innocent Passenger", bears no responsibility for the
happening of the accident.
20. Plaintiff is entitled to partial Summary Judgment on the issue of liability.
DEFENDANTS INO TRANSPORTATION CORP. AND MARINO RIVAS
MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY
MUUST BE DENIED
21. For the sake of judicial economy, your affirmant hereby adopts and incorporates
the facts, circumstances, precedent and legal arguments set forth in ¶¶3-25 of the Affirmation in
Opposition of Nancy S. Goodman, Esq., James F. Butler & Associates, attorneys for RIVAS
CONSTRUCTION CORP. and DAVID RIVAS LUNA. See, NYSCEF Doc.# 33.
22. In addition, the question of fault in a negligence action is ordinarily a question of
fact to be determined by the jury. Ugarizza v. Schmieder, 46 N.Y.2d 471, 386 N.E.2d 1324, 414
N.Y.S.2d 304 (1979); Chahales v. Garber, 195 A.D.2d 585, 600 N.Y.S.2d 739 (2nd Dep't 1993).
A party seeking summary judgment has the burden of tendering evidentiary proof sufficient to
establish its entitlement to judgment as a matter of law by demonstrating the absence of any
material triable issue of fact. Alvarez v Prospect Hosp., 68 N.Y.2d 320 (1986); Winegrad v New
York Univ. Med. Ctr., 64 NY2d 851 (1985); Friends of Animals v Associated Fur Mfrs., 46
NY2d 1065, 1067 (1979); Seidman v Industrial Recycling Props., Inc., 52 AD3d 678 (2008).
4 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
23. Failure of the moving papers to eliminate all material issues of fact requires the
denial of the motion for summary judgment, without regard to the sufficiency of the opposition
papers. Alvarez v Prospect Hosp., 68 N.Y.2d at 324. The burden on the movant is such that
summary judgment must be denied even if the existence of a triable issue of fact is only
arguable. Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439 (1968); Baker v Briarcliff
School Dist., 205 AD2d 652, 653 [1994]).
24. When deciding a motion for summary judgment, the Court is required to view the
evidence presented in the light most favorable to the party opposing the motion and to draw
every reasonable inference from the pleadings and proof submitted by the parties in favor of the
opponent to the motion. Myers v Fir Cab Corp., 64 NY2d 806 [1985]; Nicklas v Tedlen Realty
Corp., 305 AD2d 385, 386 [2003].
25. Resolving questions of credibility, determining the accuracy of witnesses, and
reconciling conflicting testimony of witnesses is for the trier of fact. Torres v. St. Vincent's
(2nd
Catholic Medical Centers of New York, 117 A.D.3d 717, 985 N.Y.S.2d 606 Dep't 2014)
(Conflicting evidence as to defendant's speed and whether defendant slowed down presented
factual issues regarding whether defendant's conduct constituted reckless disregard and
precluded summary judgment).
26. In opposing a motion for summary judgment, plaintiff is entitled to have his
evidence be accepted as true and "the benefit of every favorable inference that can reasonably be
(2nd
drawn therefrom". Germain v. Irizarry, 82 A.D.3d 833, 836, 918 N.Y.S.2d 523, 526
2011); Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 626, 480 N.E.2d 740, 741 (1985); Pantote
(13t
Big Alpha Goods, Inc. v. Schefman, 121 A.D.2d 295, 503 N.Y.S.2d 58 Dept. 1986); Russel
v. Barton Hepburn Hospital, 154 A.D.2d 796, 546 N.Y.S.2d 239 (3d Dept., 1989).
5 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
27. A party should be afforded a reasonable opportunity to conduct discovery prior to
judgment"
the determination of a motion for summary Village of Dobbs Ferry v. Landing on the
Water at Dobbs Ferry Homeowners Assn., Inc., 198 A.D.3d 838, 839, 156 N.Y.S.3d 285; Brea v.
Salvatore, 130 A.D.3d 956, 956, 13 N.Y.S.3d 839). Summary judgment should be denied where
the motion is made before the parties have an adequate opportunity to conduct discovery, and
(2nd
depositions have not taken place. Corvino v. Schineller, 168 A.D.3d 81290 N.Y.S.3d 294
Dep't 2019). Summary judgment should be denied where it appears that further discovery
might lead to relevant evidence pertaining to the circumstances of an accident. Hawana v.
(2nd
Carbuccia, 164 A.D.3d 563, 81 N.Y.S.3d 543 Dep't 2018).
28. No person shall drive a vehicle in the City of New York at a speed greater than
twenty-five miles per hour except where official signs indicate a different official speed limit.
RCNY §4-06(a)(1).
STEVENS'
29. Plaintiff BRITTANY Affidavit testimony submitted herewith raises
questions of fact which cannot be resolved on a Motion for Summary Judgment. In her
Affidavit, plaintiff BRITTANY STEVENS states that defendant RIVAS was proceeding on
Eastern Parkway towards Rockaway Avenue at a speed of approximately 35-40 mph. When
defendant RIVAS reached the intersection he came to a sudden short stop. After stopping short,
"A"
the taxi was struck from behind. Exhibit $2-3.
30. Plaintiff's testimony raises a material question of fact regarding whether
defendant RIVAS was driving at an unsafe speed, and whether defendant MARINO RIVAS was
driving in excess of the speed limit immediately prior to the accident.
6 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
31. Based on plaintiff's testimony, a jury could find that the moving defendants
MARINO RIVAS and INO TRANSPORTATION CORP. were negligent, that their negligence
was a proximate cause of the accident, and apportion some or all of the responsibility for the
accident to defendants MARINO RIVAS and INO TRANSPORTATION, CORP.
32. In addition, it is respectfully submitted that the Affidavit testimony of plaintiff
BRITTANY STEVENS that defendant RIVAS was driving in excess of the speed limit prior to
defendants'
stopping short rebuts prima facie showing of entitlement to judgment as a matter of
law on the issue of liability.
33. Finally, discovery in this action is at the initial phase. Depositions have not yet
co-defendants'
been held. As was articulated by Ms. Goodman in RIVAS CONSTRUCTION
CORP. and DAVD RIVAS LUNA Affirmation in Opposition, there are many questions which
have not been answered which require further discovery. Summary judgment on the issue of
liability would be premature and a reversible error in the case at bar.
34. For all the reasons set forth herein, the Motion for Summary Judgment of
defendants MARINO RIVAS and INO TRANSPORTATION, INC. should be denied.
WHEREFORE, it is respectfully requested that the Court issue an order granting
plaintiff BRITTANY STEVENS's Cross- Motion for Partial Judgment on the issue of
Summary
RIVAS'
liability, and deny defendants INO TRANSPORTATION CORP. AND MARINO
Motion for Summary Judgment on the issue of liability, for any such other and further relief as
this Court deems just and proper.
7 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
Dated: Maspeth, New York
February 8, 2023
B ryam/B are bamw
Law Offices of Bryan Barenbaum
Attorneys for Plaintiff
BRITTANY STEVENS
2060 Eastern Parkway
Brooklyn, New York 11207
T.: 718-421-1111
F.: 718-504-7755
8 of 9
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023
TO:
CASSELLA AND SANDUSKY
Attorneys for Defendants
INO TRANSPORTATION CORP. and
MARINO RIVAS
Office Address
1 Metrotech Center
Brooklyn, NY 11201
Mailing Address
5 Broadway, Suite 500
Freeport, NY 11520
866-220-0176
JAMES F. BUTLER & ASSOCIATES
Attorneys for Defendants
RIVAS CONSTRUCTION DORP and
DAVID RIVAS LUNA
PO BOX 9040
300 Jericho Quadrangle Suite 260
Jericho, NY 11753
516-229-6000
SCAHILL LAW GROUP P.C.
Attorney for Defendant
EMMANUEL MORGAN and ALI GEORGE
1065 Steward Avenue Suite 210
Bethpage, NY 11714
516-294-5200
9 of 9
Preview
FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _________________________________________________________________Ç BRITTANY STEVENS, Index No.: 524933/2020 Plaintiffs, AFFIRMATION IN SUPPORT AND IN OPPOSITION -against- RIVAS CONSTRUCTION CORP., DAVID RIVAS LUNA, EMMANUEL MORGAN, ALI GEORGE, INO TRANSPORTATION CORP. AND MARINO RIVAS, Defendants. ___________________________________________________________________Ç BRYAN BARENBAUM, an attorney admitted to practice in the Courts of the State of New York, affirms under penalties of perjury: 1. I am a member of the Law Offices of Bryan Barenbaum, attorneys for plaintiff, BRITTANY STEVENS. As such and based on a review of the file maintained by my office, I am familiar with the facts and circumstances set forth herein. 2. I submit this affirmation in support of plaintiff BRITTANY STEVENS'Cross- (i) Passenger" Motion for Partial Summary Judgment pursuant to CPLR 3212 as an "Innocent on the issue of liability and (ii) in opposition to the Motion for Summary Judgment by defendants INO TRANSPORTATION CORP. AND MARINO RIVAS, and (iii) for such other relief as this Court may deem just and proper. 3. This Affirmation is submitted with the following Exhibits: "A" Exhibit Affidavit of plaintiff, BRITTANY STEVENS 1 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 4. This is an action for bodily injury from a three-vehicle automobile chain accident which took place on January 21, 2020. The accident involved Vehicle No. 1 owned and operated by the defendants INO TRANSPORTATION CORP. AND MARINO RIVAS (hereafter the "1NO" defendants), Vehicle No. 2 owned and operated by defendants ALI GEORGE and EMMANUEL MORGAN, and Vehicle No. 3 owned and operated by DAVID RIVAS LUNA "A" and RIVAS CONDSTRUCTION CORP. Exhibit ¶l. 5. Plaintiff BRITTANY STEVENS was a passenger in defendants INO RIVAS' TRANSPORTATION CORP. AND MARINO taxi at the time of the subject accident. "A" Exhibit ¶l. 6. The accident happened at the intersection of Eastern Parkway and Rockaway Avenue. Prior to the accident, defendants INO TRANSPORTATION CORP. AND MARINO RIVAS' "A" taxi was proceeding on Eastern Parkway towards Rockaway Avenue. Exhibit ¶2. 7. The taxi approached the intersection at a speed of 35-40 mph. When the taxi reached the intersection, the taxi came to a sudden short stop. After stopping short the taxi was "A" struck from behind. Exhibit ¶¶2-3. 8. Plaintiff sustained serious and permanent injuries as a result of the accident of "A" January 21, 2020. Exhibit ¶4. 9. Plaintiff commenced this action for bodily injury with the filing of a Summons and Complaint on or about December 24, 2020. NYSCEF Doc. #1. 10. Issue was joined with defendants RIVAS CONSTRUCTION CORP. and DAVID RIVAS LUNA with service of a Verified Answer with Cross-Claims on or about June 4, 2021. NYSCEF Doc. #9. 2 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 11. Issue was joined with defendants EMMANUEL MORGAN and ALI GEORGE with service of a Verified Answer on or about January 19, 2022. NYSCEF Doc. #13. 12. Issue was joined with defendants INO TRANSPORTATION CORP. and MARINO RIVAS with service of a Verified Answer with Cross-Claim on or about January 19, 2022. NYSCEF Doc. #14. 13. A Preliminary Conference Order was issued on March 22, 2022. NYSCEF Doc. #16. 14. A Compliance Conference Order was issued on September 26, 2022. NYSCEF Doc. #28. 15. Discovery is in the initial phase. Depositions have not yet been held. PLAINTIFF BRITTANY STEVENS, AN INNOCENT PASSENGER, IS ENTITLED TO PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY 16. Plaintiff, BRITTANY STEVENS, is entitled to partial Summary Judgment on the issue of liability. An innocent passenger, who is free of responsibility for the happening of an accident, is entitled to partial Summary Judgment on the issue liability. Medina v. Rodriguez, 92 (2nd A.D.3d 850, 939 N.Y.S.2d 514 Dep't 2012); Mello v. Narco Cab Corp., 105 A.D.3d 634, (1st 963 N.Y.S.2d 581 Dep't 2013). 17. The right of an innocent passenger to Summary Judgment in a negligence action arising out of an automobile collision is not restricted by questions of comparative negligence which may exist between the drivers of vehicles involved in the accident. Questions of apportionment of responsibility as between the operators of the vehicles involved in an accident 3 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 plaintiffs' do not affect entitlement to summary judgment. Silberman v. Surrey Cadillac (2"d Limousine Service, 109 A.D.2d 833, 486 N.Y.S.2d 357 Dep't 1985). 18. Plaintiff, BRITTANY STEVENS, was a passenger in the vehicle owned and operated by defendants INO TRANSPORTATION CORP. AND MARINO RIVAS at the time "A" of the accident. Exhibit ¶l. 19. As such, plaintiff, an "Innocent Passenger", bears no responsibility for the happening of the accident. 20. Plaintiff is entitled to partial Summary Judgment on the issue of liability. DEFENDANTS INO TRANSPORTATION CORP. AND MARINO RIVAS MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY MUUST BE DENIED 21. For the sake of judicial economy, your affirmant hereby adopts and incorporates the facts, circumstances, precedent and legal arguments set forth in ¶¶3-25 of the Affirmation in Opposition of Nancy S. Goodman, Esq., James F. Butler & Associates, attorneys for RIVAS CONSTRUCTION CORP. and DAVID RIVAS LUNA. See, NYSCEF Doc.# 33. 22. In addition, the question of fault in a negligence action is ordinarily a question of fact to be determined by the jury. Ugarizza v. Schmieder, 46 N.Y.2d 471, 386 N.E.2d 1324, 414 N.Y.S.2d 304 (1979); Chahales v. Garber, 195 A.D.2d 585, 600 N.Y.S.2d 739 (2nd Dep't 1993). A party seeking summary judgment has the burden of tendering evidentiary proof sufficient to establish its entitlement to judgment as a matter of law by demonstrating the absence of any material triable issue of fact. Alvarez v Prospect Hosp., 68 N.Y.2d 320 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 (1979); Seidman v Industrial Recycling Props., Inc., 52 AD3d 678 (2008). 4 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 23. Failure of the moving papers to eliminate all material issues of fact requires the denial of the motion for summary judgment, without regard to the sufficiency of the opposition papers. Alvarez v Prospect Hosp., 68 N.Y.2d at 324. The burden on the movant is such that summary judgment must be denied even if the existence of a triable issue of fact is only arguable. Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439 (1968); Baker v Briarcliff School Dist., 205 AD2d 652, 653 [1994]). 24. When deciding a motion for summary judgment, the Court is required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and proof submitted by the parties in favor of the opponent to the motion. Myers v Fir Cab Corp., 64 NY2d 806 [1985]; Nicklas v Tedlen Realty Corp., 305 AD2d 385, 386 [2003]. 25. Resolving questions of credibility, determining the accuracy of witnesses, and reconciling conflicting testimony of witnesses is for the trier of fact. Torres v. St. Vincent's (2nd Catholic Medical Centers of New York, 117 A.D.3d 717, 985 N.Y.S.2d 606 Dep't 2014) (Conflicting evidence as to defendant's speed and whether defendant slowed down presented factual issues regarding whether defendant's conduct constituted reckless disregard and precluded summary judgment). 26. In opposing a motion for summary judgment, plaintiff is entitled to have his evidence be accepted as true and "the benefit of every favorable inference that can reasonably be (2nd drawn therefrom". Germain v. Irizarry, 82 A.D.3d 833, 836, 918 N.Y.S.2d 523, 526 2011); Negri v. Stop and Shop, Inc., 65 N.Y.2d 625, 626, 480 N.E.2d 740, 741 (1985); Pantote (13t Big Alpha Goods, Inc. v. Schefman, 121 A.D.2d 295, 503 N.Y.S.2d 58 Dept. 1986); Russel v. Barton Hepburn Hospital, 154 A.D.2d 796, 546 N.Y.S.2d 239 (3d Dept., 1989). 5 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 27. A party should be afforded a reasonable opportunity to conduct discovery prior to judgment" the determination of a motion for summary Village of Dobbs Ferry v. Landing on the Water at Dobbs Ferry Homeowners Assn., Inc., 198 A.D.3d 838, 839, 156 N.Y.S.3d 285; Brea v. Salvatore, 130 A.D.3d 956, 956, 13 N.Y.S.3d 839). Summary judgment should be denied where the motion is made before the parties have an adequate opportunity to conduct discovery, and (2nd depositions have not taken place. Corvino v. Schineller, 168 A.D.3d 81290 N.Y.S.3d 294 Dep't 2019). Summary judgment should be denied where it appears that further discovery might lead to relevant evidence pertaining to the circumstances of an accident. Hawana v. (2nd Carbuccia, 164 A.D.3d 563, 81 N.Y.S.3d 543 Dep't 2018). 28. No person shall drive a vehicle in the City of New York at a speed greater than twenty-five miles per hour except where official signs indicate a different official speed limit. RCNY §4-06(a)(1). STEVENS' 29. Plaintiff BRITTANY Affidavit testimony submitted herewith raises questions of fact which cannot be resolved on a Motion for Summary Judgment. In her Affidavit, plaintiff BRITTANY STEVENS states that defendant RIVAS was proceeding on Eastern Parkway towards Rockaway Avenue at a speed of approximately 35-40 mph. When defendant RIVAS reached the intersection he came to a sudden short stop. After stopping short, "A" the taxi was struck from behind. Exhibit $2-3. 30. Plaintiff's testimony raises a material question of fact regarding whether defendant RIVAS was driving at an unsafe speed, and whether defendant MARINO RIVAS was driving in excess of the speed limit immediately prior to the accident. 6 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 31. Based on plaintiff's testimony, a jury could find that the moving defendants MARINO RIVAS and INO TRANSPORTATION CORP. were negligent, that their negligence was a proximate cause of the accident, and apportion some or all of the responsibility for the accident to defendants MARINO RIVAS and INO TRANSPORTATION, CORP. 32. In addition, it is respectfully submitted that the Affidavit testimony of plaintiff BRITTANY STEVENS that defendant RIVAS was driving in excess of the speed limit prior to defendants' stopping short rebuts prima facie showing of entitlement to judgment as a matter of law on the issue of liability. 33. Finally, discovery in this action is at the initial phase. Depositions have not yet co-defendants' been held. As was articulated by Ms. Goodman in RIVAS CONSTRUCTION CORP. and DAVD RIVAS LUNA Affirmation in Opposition, there are many questions which have not been answered which require further discovery. Summary judgment on the issue of liability would be premature and a reversible error in the case at bar. 34. For all the reasons set forth herein, the Motion for Summary Judgment of defendants MARINO RIVAS and INO TRANSPORTATION, INC. should be denied. WHEREFORE, it is respectfully requested that the Court issue an order granting plaintiff BRITTANY STEVENS's Cross- Motion for Partial Judgment on the issue of Summary RIVAS' liability, and deny defendants INO TRANSPORTATION CORP. AND MARINO Motion for Summary Judgment on the issue of liability, for any such other and further relief as this Court deems just and proper. 7 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 Dated: Maspeth, New York February 8, 2023 B ryam/B are bamw Law Offices of Bryan Barenbaum Attorneys for Plaintiff BRITTANY STEVENS 2060 Eastern Parkway Brooklyn, New York 11207 T.: 718-421-1111 F.: 718-504-7755 8 of 9 FILED: KINGS COUNTY CLERK 02/09/2023 10:55 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 02/09/2023 TO: CASSELLA AND SANDUSKY Attorneys for Defendants INO TRANSPORTATION CORP. and MARINO RIVAS Office Address 1 Metrotech Center Brooklyn, NY 11201 Mailing Address 5 Broadway, Suite 500 Freeport, NY 11520 866-220-0176 JAMES F. BUTLER & ASSOCIATES Attorneys for Defendants RIVAS CONSTRUCTION DORP and DAVID RIVAS LUNA PO BOX 9040 300 Jericho Quadrangle Suite 260 Jericho, NY 11753 516-229-6000 SCAHILL LAW GROUP P.C. Attorney for Defendant EMMANUEL MORGAN and ALI GEORGE 1065 Steward Avenue Suite 210 Bethpage, NY 11714 516-294-5200 9 of 9