Preview
FILED: KINGS COUNTY CLERK 02/13/2023 12:43 PM INDEX NO. 524933/2020
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------------X INDEX NO.: 524933/2020
BRITTANY STEVENS,
Plaintiff,
- against - AFFIRMATION
IN REPLY
RIVAS CONSTRUCTION CORP., DAVID RIVAS LUNA,
EMMANUEL MORGAN, ALI GEORGE, INO
TRANSPORTATION CORP. AND MARINO RIVAS,
FILE NO. 1079031
Defendants. CASE ID NO. ATIC-572
---------------------------------------------------------------------------X
RACHEL H. SCHEFEN, an attorney duly admitted to practice law before the Courts of
the State of New York, affirms the following to be true under the penalties of perjury pursuant to
CPLR § 2106:
1. I am associated with CASSELLA AND SANDUSKY, attorneys for the
Defendants, INO TRANSPORTATION CORP. and MARINO RIVAS, and as such am fully
familiar with the facts and circumstances of this action as set forth, based upon the contents of
the file maintained in this office.
2. I respectfully make this Affirmation, upon information and belief, in reply to the
Affirmation in Opposition of Erin E. Hennessy, Esq., counsel for Co-Defendants ALI GEORGE
and EMMANUEL MORGAN. Co-Defendants’ counsel submitted the Affirmation in
Opposition to the underlying motion of Defendants herein, which sought relief in the form of an
Order granting summary judgment in favor of Defendants INO TRANSPORTATION CORP.
and MARINO RIVAS on the issue of liability.
3. Defendants repeat and reiterate the allegations raised in the underlying motion
and submits this Affirmation in Reply to supplement the same and to respond to Co-Defendants’
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submissions.
4. Co-Defendants’ opposition rests on the contentions that 1) Defendants’
underlying motion is premature and; 2) that Co-Defendants ALI GEORGE and EMMANUEL
MORGAN [operator and owner of middle vehicle in three vehicle rear end chain] have a non
negligent explanation for the rear end accident. Respectfully, neither of these arguments present
issues of fact or overcome Defendants’ entitlement to summary judgment as a matter of law.
5. Defendants’ underlying motion is not premature. A Court may properly grant
summary judgment even prior to depositions. Belitsis v. Airborne Express Freight Corp., 306
A.D. 2d (2d Dep’t 2003). See also Pena v. Castillo, 306 A.D.2d 519 (2d Dep’t 2003) (The
Appellate Division held “[t]he Supreme Court improperly denied as premature the plaintiffs’
motion for summary judgment on the issue of liability as premature. (Citations omitted)
Contrary to the defendant’s contentions, the plaintiffs established their entitlement to judgment
as a matter of law on the issue of liability.” Clearly, Defendants’ motion is not premature.
6. Moreover, conclusory and speculative assertions which are not supported by any
evidence fail to raise issues of fact. Trzepacz v. Jara, 11 A.D.3d 531 (2d Dep’t 2004).
7. Co-Defendants profer an addifavit by Co-Defendant ALI GEORGE. Mr.
GEORGE states that his vehicle was struck in the rear and propelled forward into the vehicle of
Defendants herein. However, Mr. GEORGE does not dispute that the vehicle of Defendants
herein was stopped ahead of his when his vehicle struck it in the rear. The facts as demonstrated
by Defendants’ underlying motion are not actually in dispute by Co-Defendants ALI GEORGE
and EMMANUEL MORGAN.
8. As demonstrated by the underlying motion and by Co-Defendants’ own
opposition, uncontradicted sworn testimony unequivocally confirms that the INO
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TRANSPORTATION CORP/ MARINO RIVAS vehicle was lawfully stopped when it was
struck in the rear. There is no basis upon which to find the Defendants INO
TRANSPORTATION CORP. AND MARINO RIVAS liable. When a vehicle is struck in the
rear at the time of an accident, its driver is entitled to judgment as a matter of law and cannot be
found negligent.
WHEREFORE, Defendants INO TRANSPORTATION CORP. AND MARINO RIVAS
respectfully request that the Court grant summary judgment, and dismiss the complaint and cross
claims and any other and further relief the Court deems just and proper.
Dated: Brooklyn, New York
February 13, 2023
CASSELLA AND SANDUSKY
Attorney(s) for the Defendant(s)
INO TRANSPORTATION CORP. AND
MARINO RIVAS,
Office Address:
1 MetroTech Center
Brooklyn, NY 11201
TEL: (866) 220-0176
Mailing Address:
5 Broadway, Suite 500
Freeport, NY 11520
TO: LAW OFFICES OF BRYAN BARENBAUM
Attorney(s) for Plaintiff(s)
BRITTANY STEVENS
2060 EASTERN PARKWAY
BROOKLYN, NY 11207
(718) 421-1111
JAMES F. BUTLER & ASSOCIATES
Attorney(s) for Co-Defendant(s)
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023
RIVAS CONSTRUCTION CORP. 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 Co-Defendant(s)
EMMANUEL MORGAN and ALI GEORGE
1065 STEWART AVENUE SUITE 210
BETHPAGE, NY 11714
(516) 294-5200
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
BRITTANY STEVENS, Index No.: 524933/2020
Plaintiff,
- against - WORD COUNT CERTIFICATION
RIVAS CONSTRUCTION CORP., DAVID RIVAS
LUNA, EMMANUEL MORGAN, ALI GEORGE, File No. 1079031
INO TRANSPORTATION CORP. AND MARINO
RIVAS,
Defendant(s).
Pursuant to Uniform Rules §202.8-b, I, Rachel H. Schefen, Esq. hereby certify that this
Affirmation complies with the word count limit of 7,000/4,200 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 525, pursuant to the word count in Microsoft Word, the word-
processing system used to prepare the document.
Dated: Brooklyn, New York
February 13, 2023
CASSELLA AND SANDUSKY
Attorneys for Defendants
INO TRANSPORTATION CORP. AND
MARINO RIVAS,
Office Address:
1 MetroTech Center
Brooklyn, NY 11201
TEL: (866) 220-0176
Mailing Address:
5 Broadway, Suite 500
Freeport, NY 11520
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023
Index No.: 524933/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_______________________________________________________
BRITTANY STEVENS,
PLAINTIFF,
-against-
RIVAS CONSTRUCTION CORP., DAVID RIVAS LUNA,
EMMANUEL MORGAN, ALI GEORGE, INO TRANSPORTATION CORP.
AND MARINO RIVAS,
DEFENDANTS.
_______________________________________________________
AFFIRMATION IN REPLY
_______________________________________________________
CASSELLA AND SANDUSKY
Office Address:
1 MetroTech Center
Brooklyn, NY 11201
Mailing Address:
5 Broadway, Suite 500
Freeport, NY 11520
_______________________________________________________
Attorneys for Defendants: INO TRANSPORTATION CORP.
AND MARINO RIVAS
_______________________________________________________
Signed: pursuant to 22 NYRRR § 130-1.1-a
_______________________________________________________
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Preview
FILED: KINGS COUNTY CLERK 02/13/2023 12:43 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X INDEX NO.: 524933/2020 BRITTANY STEVENS, Plaintiff, - against - AFFIRMATION IN REPLY RIVAS CONSTRUCTION CORP., DAVID RIVAS LUNA, EMMANUEL MORGAN, ALI GEORGE, INO TRANSPORTATION CORP. AND MARINO RIVAS, FILE NO. 1079031 Defendants. CASE ID NO. ATIC-572 ---------------------------------------------------------------------------X RACHEL H. SCHEFEN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury pursuant to CPLR § 2106: 1. I am associated with CASSELLA AND SANDUSKY, attorneys for the Defendants, INO TRANSPORTATION CORP. and MARINO RIVAS, and as such am fully familiar with the facts and circumstances of this action as set forth, based upon the contents of the file maintained in this office. 2. I respectfully make this Affirmation, upon information and belief, in reply to the Affirmation in Opposition of Erin E. Hennessy, Esq., counsel for Co-Defendants ALI GEORGE and EMMANUEL MORGAN. Co-Defendants’ counsel submitted the Affirmation in Opposition to the underlying motion of Defendants herein, which sought relief in the form of an Order granting summary judgment in favor of Defendants INO TRANSPORTATION CORP. and MARINO RIVAS on the issue of liability. 3. Defendants repeat and reiterate the allegations raised in the underlying motion and submits this Affirmation in Reply to supplement the same and to respond to Co-Defendants’ 1 of 6 FILED: KINGS COUNTY CLERK 02/13/2023 12:43 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023 submissions. 4. Co-Defendants’ opposition rests on the contentions that 1) Defendants’ underlying motion is premature and; 2) that Co-Defendants ALI GEORGE and EMMANUEL MORGAN [operator and owner of middle vehicle in three vehicle rear end chain] have a non negligent explanation for the rear end accident. Respectfully, neither of these arguments present issues of fact or overcome Defendants’ entitlement to summary judgment as a matter of law. 5. Defendants’ underlying motion is not premature. A Court may properly grant summary judgment even prior to depositions. Belitsis v. Airborne Express Freight Corp., 306 A.D. 2d (2d Dep’t 2003). See also Pena v. Castillo, 306 A.D.2d 519 (2d Dep’t 2003) (The Appellate Division held “[t]he Supreme Court improperly denied as premature the plaintiffs’ motion for summary judgment on the issue of liability as premature. (Citations omitted) Contrary to the defendant’s contentions, the plaintiffs established their entitlement to judgment as a matter of law on the issue of liability.” Clearly, Defendants’ motion is not premature. 6. Moreover, conclusory and speculative assertions which are not supported by any evidence fail to raise issues of fact. Trzepacz v. Jara, 11 A.D.3d 531 (2d Dep’t 2004). 7. Co-Defendants profer an addifavit by Co-Defendant ALI GEORGE. Mr. GEORGE states that his vehicle was struck in the rear and propelled forward into the vehicle of Defendants herein. However, Mr. GEORGE does not dispute that the vehicle of Defendants herein was stopped ahead of his when his vehicle struck it in the rear. The facts as demonstrated by Defendants’ underlying motion are not actually in dispute by Co-Defendants ALI GEORGE and EMMANUEL MORGAN. 8. As demonstrated by the underlying motion and by Co-Defendants’ own opposition, uncontradicted sworn testimony unequivocally confirms that the INO 2 of 6 FILED: KINGS COUNTY CLERK 02/13/2023 12:43 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023 TRANSPORTATION CORP/ MARINO RIVAS vehicle was lawfully stopped when it was struck in the rear. There is no basis upon which to find the Defendants INO TRANSPORTATION CORP. AND MARINO RIVAS liable. When a vehicle is struck in the rear at the time of an accident, its driver is entitled to judgment as a matter of law and cannot be found negligent. WHEREFORE, Defendants INO TRANSPORTATION CORP. AND MARINO RIVAS respectfully request that the Court grant summary judgment, and dismiss the complaint and cross claims and any other and further relief the Court deems just and proper. Dated: Brooklyn, New York February 13, 2023 CASSELLA AND SANDUSKY Attorney(s) for the Defendant(s) INO TRANSPORTATION CORP. AND MARINO RIVAS, Office Address: 1 MetroTech Center Brooklyn, NY 11201 TEL: (866) 220-0176 Mailing Address: 5 Broadway, Suite 500 Freeport, NY 11520 TO: LAW OFFICES OF BRYAN BARENBAUM Attorney(s) for Plaintiff(s) BRITTANY STEVENS 2060 EASTERN PARKWAY BROOKLYN, NY 11207 (718) 421-1111 JAMES F. BUTLER & ASSOCIATES Attorney(s) for Co-Defendant(s) 3 of 6 FILED: KINGS COUNTY CLERK 02/13/2023 12:43 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023 RIVAS CONSTRUCTION CORP. 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 Co-Defendant(s) EMMANUEL MORGAN and ALI GEORGE 1065 STEWART AVENUE SUITE 210 BETHPAGE, NY 11714 (516) 294-5200 4 of 6 FILED: KINGS COUNTY CLERK 02/13/2023 12:43 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS BRITTANY STEVENS, Index No.: 524933/2020 Plaintiff, - against - WORD COUNT CERTIFICATION RIVAS CONSTRUCTION CORP., DAVID RIVAS LUNA, EMMANUEL MORGAN, ALI GEORGE, File No. 1079031 INO TRANSPORTATION CORP. AND MARINO RIVAS, Defendant(s). Pursuant to Uniform Rules §202.8-b, I, Rachel H. Schefen, Esq. hereby certify that this Affirmation complies with the word count limit of 7,000/4,200 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 525, pursuant to the word count in Microsoft Word, the word- processing system used to prepare the document. Dated: Brooklyn, New York February 13, 2023 CASSELLA AND SANDUSKY Attorneys for Defendants INO TRANSPORTATION CORP. AND MARINO RIVAS, Office Address: 1 MetroTech Center Brooklyn, NY 11201 TEL: (866) 220-0176 Mailing Address: 5 Broadway, Suite 500 Freeport, NY 11520 5 of 6 FILED: KINGS COUNTY CLERK 02/13/2023 12:43 PM INDEX NO. 524933/2020 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2023 Index No.: 524933/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _______________________________________________________ BRITTANY STEVENS, PLAINTIFF, -against- RIVAS CONSTRUCTION CORP., DAVID RIVAS LUNA, EMMANUEL MORGAN, ALI GEORGE, INO TRANSPORTATION CORP. AND MARINO RIVAS, DEFENDANTS. _______________________________________________________ AFFIRMATION IN REPLY _______________________________________________________ CASSELLA AND SANDUSKY Office Address: 1 MetroTech Center Brooklyn, NY 11201 Mailing Address: 5 Broadway, Suite 500 Freeport, NY 11520 _______________________________________________________ Attorneys for Defendants: INO TRANSPORTATION CORP. AND MARINO RIVAS _______________________________________________________ Signed: pursuant to 22 NYRRR § 130-1.1-a _______________________________________________________ 6 of 6