Preview
FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - -------- x
Index No: 150266/17
Plaintiff,
AFFIRMATION IN
SUPPORT
-against-
FREDERICK V. TRAPP, GOJART AGOLI and
NERTILA GUZE,
Defendants.
----- ---- x
YEKATERINA KOVTUNOVA, an attorney duly admitted to practice law before the
Courts of the State of New York, respectfully affirms the following under penalty of perjury:
INTRODUCTION
1. I am an associate with the law firm McMahon, Martine & Gallagher, LLP, attomeys
for defendant(s) GOJART AGOLI and NERTILA GUZE, as such, I am fully familiar with allthe
facts and circumstances of this matter.
1. I submit this Affirmation in Support of the instant motion which seeks an Order,
pursuant to CPLR § 3212, granting defendant(s) GOJART AGOLI and NERTILA GUZE summary
judgment and dismissal of Plaintiff's Complaint in its and with prejudice as well as allcross-
entirety
claims; granting summary judgement in favor of defendant(s) GOJART AGOLI and NERTILA
GUZE against defendant FREDERICK V. TRAPP on the issue of liability,together with such other
and further relief as thisCourt deems just and proper.
PLAINTIFF'S CLAIM
2. This is an action for personal injuries alleged to have occurred as the result of a
three-car, motor vehicle accident that occurred on April 28, 2016 at or near the intersection of I-278
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92nd
Eastbound and Street at Dahlgren Place, County of Kings, State on New York. The accideñt
occurred on the Verrazano Bridge. The drivers of the vehicles were Plaintiff JOHN H.
GUTIERREZ, Defendant GOJART AGOLI and Co-Defendant FREDERICK V. TRAPP.
3. Plaintiff GUTIERREZ alleges he was stopped in trafficon I-278 Eastbound on the
Verrazano Bridge when his vehicle was rear-ended by defendant AGOLI. Defendant AGOLI states
he was also stopped in traffic I-278 Eastbound when his vehicle was rear-ended by co-defendant
TRAPP. Co-defendant Trapp states he was traveling at a speed in excess of 15 miles per hour when
he rear-ended defendant AGOLI. A copy of the Police Accident Report is attached hereto as
Exhibit A.
4. Plaintiff's vehicle struck a black Ford Mustang, that was at a complete stop, in front
of Plaintiff's vehicle. The driver of the black Ford Mustang is not part of this, or any related
litigation.
PROCEDURAL HISTORY
5. Plaintiff commenced this action by filing a Summons and Verified Complaint on or
about January 10, 2017, a copy of which is attached hereto as Exhibit B.
6. Defendants AGOLI and GUZE by their attorneys, McMAHON, MARTINE &
GALLAGHER, LLP, served their Verified Answer on or about February 28, 2017, a copy of which is
attached hereto as Exhibit C.
7. Defendant TRAPP by his attorneys ABRAMS, GORELICK, FRIEDMAN &
JACOBSON, LLP. served theirVerified Answer with Cross Claims on or about May 2, 2017 a copy of
which is attached hereto as Exhibit D.
8. To date, plaintiffs have not filed the Note of Issue and Certificate of Readiness. As
such, this motion is timely pursuant to the CPLR and this Court's Rules.
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PLAINTIFF GUTIERREZ'S DEPOSITION TESTIMONY
9. On September 28, 2018, plaintiff Gutierrez appeared for an examination before trial.
A copy of plaintiff Gutierrez's deposition transcript is attached hereto as Exhibit C. Plaintiff
Gutierrez testified that he was involved in a four-car, motor vchicle accident on April 28, 2016. M at
pgs. 23-24. At the time of the accident, he was the operator of a vehicle. g at pg. 24. The accident
occurred on the Verrazano Bridge, closer to Brooldyn & at pgs. 27-28.
10. At the time of the accident, the plaintiff's vehicle came to a complete stop M At pg.
28-29. The accident occurred when the defendant AGOLI's vehicle came in contact with the rear end
of plaintiff'svehicle, causing him to come in coñtact with the vehicle in front of him M At pgs. 28-29.
DEFENDANT AGOLI'S DEPOSITION TESTIMONY
11. On November 5, 2018, defendant AGOLI appeared for an examination before trial. A
copy of defendant AGOLI's deposition transcript is attached hereto as Exhibit D. Defendant AGOLI
testified that he was involved in a four-car, motor vehicle accident on April 28, 2017. Id. at pg. 11.
The accident occurred on the Verrazano Bridge, lower level, on the thirdof the bridge closer to
Brooklyn. M at pgs. 14-16.
12. In the moment before Defendant Trapp's vehicle came in contact with the rear of
defendant AGOLI's vehicle, defendant AGOLI's vehicle was fully stopped. M at pg. 22. The
AGOLI vehicle had been stopped for approximately 15 seconds before impact came from the rear,R
at pg. 23. As result of Defendant Trapp's vehicle coming in contact with the rear of defendant
AGOLI's vehicle, defeñdañt AGOLI's vehicle was propelled forward and made contact with
Plaintiff's vehicle M at pg. 24.
13. Defendant AGOLI's vehicle sustained sufficient impact damage that ithad to be
towed from the scene of the accident.
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14. Defendant AGOLI testified that the vehicle he was driving isregistered to his wife, the
defendaiit Nertila GUZE I4_at pgs. 12-13. She was not a witness to the accident.
CO-DEFENDANT TRAPP'S DEPOSITION TESTIMOlW
15. On November 5, 2018, defendant Trapp appeared for an examination before trial.A
copy of defendant Trapp's deposition transcript is attached hereto as Exhibit E. Defendant Trapp
testified that he was involve in a four-car, motor vehicle accident on April 28, 2017 on the Verrazano
Bridge on the lower level on the third of the bridge closest to Brooklyn M at pg.20.
16. In the last hundred yards before the point where the accident took place, defendant
Trapp admitted that his speed was between 30 and 35 miles per hour Eat pg. 22, 25.
17. Defendant TRAPP testified that he was traveling approximately 30 to 35 miles
per hour when he saw the vehicle in front of him brakes lights come on Id..atpg 25.
18. Defendant TRAPP further stated that he was traveling one to one-and-a-half car
lengths behind defendant Agoli's vehicle M at pg. 23.
19. Defendant TRAPP testified that before impact was made he observed the vehicle in
front of him slowing up E at pg. 28.
20. At the moment when the front of the TRAPP vehicle struck the rear of the
AGOLI vehicle, defendant Trapp estimates he was traveling 15 to 18 miles per hour & at pg. 28.
21. When asked to provide an explanation for what defendant TRAPP attributed to the
read end collision of the AGOLI vehicle, defendant Trapp stated "Just the flow of the nioniing traffic
- sony."
in the morning. I couldn't see that far ahead but I would I'm Rat pg. 61.
ARGUMENT I
SUMMARY JUDGEMENT SHOULD BE GRANTED TO DEFE_NDANT AGOLI AND
DEFENDANT GUZE
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22. Itis respectfully submitted that defendants AGOLI and GUZE are entitled to
summary judgment, as a matter of law, because there is no issue of fact as to the happening of the
subject accident. It isundisputed that the vehicle operated by defendant AGOLI was stopped or
stopping when itwas struck in the rear by co-defendant TRAPP, thereby propelling defendant
AGOLI's vehicle forward and causing itto make contact with plaintiff's vehicle.
23. It iswell established that a rear-end collision with a stopped or stopping vehicle
establishes a prima facie case of negligence on the part of the operator of the moving vehicle,
and imposes a duty on the operator of the moving vehicle to explain how the accident occurred.
The operator is required to rebut the inference of negligence created by an unexplained rear-end
collision. If the operator of the moving vehicle cannot come forward with any evidence to rebut
the inference of negligence, the driver of the struck vehicle may properly be awarded judgment
on the issue of liability as a matter of law. Tutrani v. County of Suffolk. 10 N.Y. 3d 906, 908
[2008]
24. It iswell settled that once a party moving for summary judgment has made a
prima facie showing of entitlement and judgment as a matter of law, offering sufficient evidence
to demonstrate the absence of any issues of material fact, the burden shifts the party opposing the
motion to produce evidentiary proof in admissible form sufficient to establish material issues of
fact which require a trialof the action. Prince v. DiBenedetto 189 AD2d, 757 (2nd Dept., 1993).
Here there can be no such showing because itis a rear end hit. The co-defendant TRAPP
negligently and without care drove his vehicle into the rear of the movant's vehicle.
25. On a motion for summary judgment the "proponent must make a prima facie
showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate
case."
any material issues of fact from the Winegrad v. New York University Med. Center. 64
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N.Y.2d 851, 487 N.Y.S.2d 316 (1985). Once the proponent has made the showing, the burden of
proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to
establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hosoital, 68
N.Y.2d 320, 508 N.Y.S.2d 923 (1986). "Summary judgment is designed to expedite allcivil cases
by eliminating from the Trial Calendar claims which can properly be resolved as a matter of
law...[W]hen there is no genuine issue to be resolved at trial,the case should be summarily
decided..."
_S_eeAndre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). See also Robinson
(1st
v. City of New York, 18 A.D.3d 255, 794 N.Y.S.2d 378 Dept. 2005).
26. "[A] disputed issue of material fact alone is insufficient to deny a motion for
litigation,'
summary judgment, the disputed issue must be 'material to the outcome of the Knight
v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would
party."
allow a rational trier of fact to find for the non-moving Matsushita Elec. Indus. Co. v.
(1986)"
Zenith Radio Corp., 475 U.S. 574, 587 (quoting from The Honorable Harold Baer, Jr.,
U.S. District Judge in Diversified Carting Inc. v. City of New York. et al.,Slip Copy, 2006 WL
147584, *3 (S.D.N.Y. January 20, 2006)).
27. It isundisputed that Defendant AGOLI's vehicle was stopped or stopping when it
was struck at the rear by co-defendant TRAPP. Co-defendant TRAPP did not provide any cvideñce
to rebut the inference of ñegligence created by an unexplaiñed rear-end collision. As such defendant
AGOLI is entitledto summary judgement.
ARGUMENT II
SUMMARY JUDGEMENT ON THE ISSUE OF LIABILITY SHOULD BE GRANTED_T_O
DEFENDANT AGOLI AND DEFENDANT GUZE
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28. Summary judgmeñt is appropriate where there is no plausible theory of liability to
support a finding of negligence on thepart of the moving defendant, where the adverse driver
was clearly negligent Namisnak v. Martin, 224 A.D.2d 258, (1st Dept., 1997) Inasmuch as there
is no evidence of negligence on the part of the moving defendants itis respectfully submitted that
the plaintiff's complaint should be dismissed.
29. While negligence actions rarely lend themselves to resolution through a motion
for summary judgment, such a motion should be granted where the facts clearly point to the
negligence of one party, without any fault or culpable conduct by the other party. Lazar v. Fea
Leasing, Inc. 264 A.D.2d 818, (2nd Dept., 1999).
30. As such, Defendants AGOLI and GUZE are still entitled to summary judgment on
the issue of liability as they did not contribute to the subject accident.
Based on the foregoing, itis respectfully submitted that defendants AGOLI and GUZE are
entitled to judgment on the issue of as no genuine issue of fact exists. The co-
summary liability
defendant TRAPP cannot offer a non-negligent explanation as to the happening of the subject
accident. Even giving every favorable inference, the defendants AGOLI and GUZE are still
entitled to summary judgment on the issue of liability as they did not contribute to the subject
accident.
CONCLUSION
movants'
31. Accordingly, there is overwhelming evidence that the vehicle slowed
Down and stopped due to traffic congestion, when itwas struck in the rear by another vehicle
operated by co-defendant TRAPP. Therefore, movants have demonstrated an entitlement to
summary judgmeñt and respectfully request that an order be issued granting summary judgment
dismissing all claims and cross claims against defendants AGOLI and GUZE.
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32. In addition, itis respectfully submitted that defendants AGOLI and GUZE are
entitled to summary judgment on the issue of liability against Defendant TRAPP as no genuine
issue of fact exists. Co-defendant TRAPP cannot offer a non-negligent explanation as to the
happening of the subject accident. Even giving every favorable inference, defendants AGOLI
and GUZE are stillentitled to summary judgment on the issue of liability because defendant
TRAPP was negligent when he struck the AGOLI and GUZE vehicle in the rear without a non-
negligent explanation and without any negligence on the part of Defendant AGOLI and GUZE.
WHEREFORE, itis respectfully requested that this Court issue an Order, pursuant to CPLR
§ 3212, granting defenant(s) GOJART AGOLI and NERTILA GUZE summary judgment and
dismissal of Plaintiff's Complaint in its and with prejudice as well as all cross-claims;
entirety
granting summary judgement in favor of defendant(s) GOJART AGOLI and NERTLA GUZE
against defendant FREDERICK V. TRAPP on the issue ofliability, together with such other and
further reliefas this Court deems just and proper.
Dated: Brooklyn, New York
December 14, 2018
Yekaterin unov
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RIDER
Schwartzapfel Laywers P.C.
Attorneys for Plaintiff
600 Old Country Road, Suite 450
Garden City, New York 11530
516-342-2200
ABRAMS, GORELICK, FRIEDMAN
& JACOBSON, LLP
Attorneys for Defendant FREDERICK V. TRAPP
4th
One Battery Park Plaza, flOOr
New York, NY 10004
Attn: S. Gunsher, Esq.
Jay
(212) 422-1200
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Preview
FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - -------- x Index No: 150266/17 Plaintiff, AFFIRMATION IN SUPPORT -against- FREDERICK V. TRAPP, GOJART AGOLI and NERTILA GUZE, Defendants. ----- ---- x YEKATERINA KOVTUNOVA, an attorney duly admitted to practice law before the Courts of the State of New York, respectfully affirms the following under penalty of perjury: INTRODUCTION 1. I am an associate with the law firm McMahon, Martine & Gallagher, LLP, attomeys for defendant(s) GOJART AGOLI and NERTILA GUZE, as such, I am fully familiar with allthe facts and circumstances of this matter. 1. I submit this Affirmation in Support of the instant motion which seeks an Order, pursuant to CPLR § 3212, granting defendant(s) GOJART AGOLI and NERTILA GUZE summary judgment and dismissal of Plaintiff's Complaint in its and with prejudice as well as allcross- entirety claims; granting summary judgement in favor of defendant(s) GOJART AGOLI and NERTILA GUZE against defendant FREDERICK V. TRAPP on the issue of liability,together with such other and further relief as thisCourt deems just and proper. PLAINTIFF'S CLAIM 2. This is an action for personal injuries alleged to have occurred as the result of a three-car, motor vehicle accident that occurred on April 28, 2016 at or near the intersection of I-278 1 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 92nd Eastbound and Street at Dahlgren Place, County of Kings, State on New York. The accideñt occurred on the Verrazano Bridge. The drivers of the vehicles were Plaintiff JOHN H. GUTIERREZ, Defendant GOJART AGOLI and Co-Defendant FREDERICK V. TRAPP. 3. Plaintiff GUTIERREZ alleges he was stopped in trafficon I-278 Eastbound on the Verrazano Bridge when his vehicle was rear-ended by defendant AGOLI. Defendant AGOLI states he was also stopped in traffic I-278 Eastbound when his vehicle was rear-ended by co-defendant TRAPP. Co-defendant Trapp states he was traveling at a speed in excess of 15 miles per hour when he rear-ended defendant AGOLI. A copy of the Police Accident Report is attached hereto as Exhibit A. 4. Plaintiff's vehicle struck a black Ford Mustang, that was at a complete stop, in front of Plaintiff's vehicle. The driver of the black Ford Mustang is not part of this, or any related litigation. PROCEDURAL HISTORY 5. Plaintiff commenced this action by filing a Summons and Verified Complaint on or about January 10, 2017, a copy of which is attached hereto as Exhibit B. 6. Defendants AGOLI and GUZE by their attorneys, McMAHON, MARTINE & GALLAGHER, LLP, served their Verified Answer on or about February 28, 2017, a copy of which is attached hereto as Exhibit C. 7. Defendant TRAPP by his attorneys ABRAMS, GORELICK, FRIEDMAN & JACOBSON, LLP. served theirVerified Answer with Cross Claims on or about May 2, 2017 a copy of which is attached hereto as Exhibit D. 8. To date, plaintiffs have not filed the Note of Issue and Certificate of Readiness. As such, this motion is timely pursuant to the CPLR and this Court's Rules. 2 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 PLAINTIFF GUTIERREZ'S DEPOSITION TESTIMONY 9. On September 28, 2018, plaintiff Gutierrez appeared for an examination before trial. A copy of plaintiff Gutierrez's deposition transcript is attached hereto as Exhibit C. Plaintiff Gutierrez testified that he was involved in a four-car, motor vchicle accident on April 28, 2016. M at pgs. 23-24. At the time of the accident, he was the operator of a vehicle. g at pg. 24. The accident occurred on the Verrazano Bridge, closer to Brooldyn & at pgs. 27-28. 10. At the time of the accident, the plaintiff's vehicle came to a complete stop M At pg. 28-29. The accident occurred when the defendant AGOLI's vehicle came in contact with the rear end of plaintiff'svehicle, causing him to come in coñtact with the vehicle in front of him M At pgs. 28-29. DEFENDANT AGOLI'S DEPOSITION TESTIMONY 11. On November 5, 2018, defendant AGOLI appeared for an examination before trial. A copy of defendant AGOLI's deposition transcript is attached hereto as Exhibit D. Defendant AGOLI testified that he was involved in a four-car, motor vehicle accident on April 28, 2017. Id. at pg. 11. The accident occurred on the Verrazano Bridge, lower level, on the thirdof the bridge closer to Brooklyn. M at pgs. 14-16. 12. In the moment before Defendant Trapp's vehicle came in contact with the rear of defendant AGOLI's vehicle, defendant AGOLI's vehicle was fully stopped. M at pg. 22. The AGOLI vehicle had been stopped for approximately 15 seconds before impact came from the rear,R at pg. 23. As result of Defendant Trapp's vehicle coming in contact with the rear of defendant AGOLI's vehicle, defeñdañt AGOLI's vehicle was propelled forward and made contact with Plaintiff's vehicle M at pg. 24. 13. Defendant AGOLI's vehicle sustained sufficient impact damage that ithad to be towed from the scene of the accident. 3 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 14. Defendant AGOLI testified that the vehicle he was driving isregistered to his wife, the defendaiit Nertila GUZE I4_at pgs. 12-13. She was not a witness to the accident. CO-DEFENDANT TRAPP'S DEPOSITION TESTIMOlW 15. On November 5, 2018, defendant Trapp appeared for an examination before trial.A copy of defendant Trapp's deposition transcript is attached hereto as Exhibit E. Defendant Trapp testified that he was involve in a four-car, motor vehicle accident on April 28, 2017 on the Verrazano Bridge on the lower level on the third of the bridge closest to Brooklyn M at pg.20. 16. In the last hundred yards before the point where the accident took place, defendant Trapp admitted that his speed was between 30 and 35 miles per hour Eat pg. 22, 25. 17. Defendant TRAPP testified that he was traveling approximately 30 to 35 miles per hour when he saw the vehicle in front of him brakes lights come on Id..atpg 25. 18. Defendant TRAPP further stated that he was traveling one to one-and-a-half car lengths behind defendant Agoli's vehicle M at pg. 23. 19. Defendant TRAPP testified that before impact was made he observed the vehicle in front of him slowing up E at pg. 28. 20. At the moment when the front of the TRAPP vehicle struck the rear of the AGOLI vehicle, defendant Trapp estimates he was traveling 15 to 18 miles per hour & at pg. 28. 21. When asked to provide an explanation for what defendant TRAPP attributed to the read end collision of the AGOLI vehicle, defendant Trapp stated "Just the flow of the nioniing traffic - sony." in the morning. I couldn't see that far ahead but I would I'm Rat pg. 61. ARGUMENT I SUMMARY JUDGEMENT SHOULD BE GRANTED TO DEFE_NDANT AGOLI AND DEFENDANT GUZE 4 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 22. Itis respectfully submitted that defendants AGOLI and GUZE are entitled to summary judgment, as a matter of law, because there is no issue of fact as to the happening of the subject accident. It isundisputed that the vehicle operated by defendant AGOLI was stopped or stopping when itwas struck in the rear by co-defendant TRAPP, thereby propelling defendant AGOLI's vehicle forward and causing itto make contact with plaintiff's vehicle. 23. It iswell established that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to explain how the accident occurred. The operator is required to rebut the inference of negligence created by an unexplained rear-end collision. If the operator of the moving vehicle cannot come forward with any evidence to rebut the inference of negligence, the driver of the struck vehicle may properly be awarded judgment on the issue of liability as a matter of law. Tutrani v. County of Suffolk. 10 N.Y. 3d 906, 908 [2008] 24. It iswell settled that once a party moving for summary judgment has made a prima facie showing of entitlement and judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any issues of material fact, the burden shifts the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trialof the action. Prince v. DiBenedetto 189 AD2d, 757 (2nd Dept., 1993). Here there can be no such showing because itis a rear end hit. The co-defendant TRAPP negligently and without care drove his vehicle into the rear of the movant's vehicle. 25. On a motion for summary judgment the "proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate case." any material issues of fact from the Winegrad v. New York University Med. Center. 64 5 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 N.Y.2d 851, 487 N.Y.S.2d 316 (1985). Once the proponent has made the showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial. Alvarez v. Prospect Hosoital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). "Summary judgment is designed to expedite allcivil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law...[W]hen there is no genuine issue to be resolved at trial,the case should be summarily decided..." _S_eeAndre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). See also Robinson (1st v. City of New York, 18 A.D.3d 255, 794 N.Y.S.2d 378 Dept. 2005). 26. "[A] disputed issue of material fact alone is insufficient to deny a motion for litigation,' summary judgment, the disputed issue must be 'material to the outcome of the Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), and must be backed by evidence that would party." allow a rational trier of fact to find for the non-moving Matsushita Elec. Indus. Co. v. (1986)" Zenith Radio Corp., 475 U.S. 574, 587 (quoting from The Honorable Harold Baer, Jr., U.S. District Judge in Diversified Carting Inc. v. City of New York. et al.,Slip Copy, 2006 WL 147584, *3 (S.D.N.Y. January 20, 2006)). 27. It isundisputed that Defendant AGOLI's vehicle was stopped or stopping when it was struck at the rear by co-defendant TRAPP. Co-defendant TRAPP did not provide any cvideñce to rebut the inference of ñegligence created by an unexplaiñed rear-end collision. As such defendant AGOLI is entitledto summary judgement. ARGUMENT II SUMMARY JUDGEMENT ON THE ISSUE OF LIABILITY SHOULD BE GRANTED_T_O DEFENDANT AGOLI AND DEFENDANT GUZE 6 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 28. Summary judgmeñt is appropriate where there is no plausible theory of liability to support a finding of negligence on thepart of the moving defendant, where the adverse driver was clearly negligent Namisnak v. Martin, 224 A.D.2d 258, (1st Dept., 1997) Inasmuch as there is no evidence of negligence on the part of the moving defendants itis respectfully submitted that the plaintiff's complaint should be dismissed. 29. While negligence actions rarely lend themselves to resolution through a motion for summary judgment, such a motion should be granted where the facts clearly point to the negligence of one party, without any fault or culpable conduct by the other party. Lazar v. Fea Leasing, Inc. 264 A.D.2d 818, (2nd Dept., 1999). 30. As such, Defendants AGOLI and GUZE are still entitled to summary judgment on the issue of liability as they did not contribute to the subject accident. Based on the foregoing, itis respectfully submitted that defendants AGOLI and GUZE are entitled to judgment on the issue of as no genuine issue of fact exists. The co- summary liability defendant TRAPP cannot offer a non-negligent explanation as to the happening of the subject accident. Even giving every favorable inference, the defendants AGOLI and GUZE are still entitled to summary judgment on the issue of liability as they did not contribute to the subject accident. CONCLUSION movants' 31. Accordingly, there is overwhelming evidence that the vehicle slowed Down and stopped due to traffic congestion, when itwas struck in the rear by another vehicle operated by co-defendant TRAPP. Therefore, movants have demonstrated an entitlement to summary judgmeñt and respectfully request that an order be issued granting summary judgment dismissing all claims and cross claims against defendants AGOLI and GUZE. 7 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 32. In addition, itis respectfully submitted that defendants AGOLI and GUZE are entitled to summary judgment on the issue of liability against Defendant TRAPP as no genuine issue of fact exists. Co-defendant TRAPP cannot offer a non-negligent explanation as to the happening of the subject accident. Even giving every favorable inference, defendants AGOLI and GUZE are stillentitled to summary judgment on the issue of liability because defendant TRAPP was negligent when he struck the AGOLI and GUZE vehicle in the rear without a non- negligent explanation and without any negligence on the part of Defendant AGOLI and GUZE. WHEREFORE, itis respectfully requested that this Court issue an Order, pursuant to CPLR § 3212, granting defenant(s) GOJART AGOLI and NERTILA GUZE summary judgment and dismissal of Plaintiff's Complaint in its and with prejudice as well as all cross-claims; entirety granting summary judgement in favor of defendant(s) GOJART AGOLI and NERTLA GUZE against defendant FREDERICK V. TRAPP on the issue ofliability, together with such other and further reliefas this Court deems just and proper. Dated: Brooklyn, New York December 14, 2018 Yekaterin unov 8 of 9 FILED: NEW YORK COUNTY CLERK 12/14/2018 05:16 PM INDEX NO. 150266/2017 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 12/14/2018 RIDER Schwartzapfel Laywers P.C. Attorneys for Plaintiff 600 Old Country Road, Suite 450 Garden City, New York 11530 516-342-2200 ABRAMS, GORELICK, FRIEDMAN & JACOBSON, LLP Attorneys for Defendant FREDERICK V. TRAPP 4th One Battery Park Plaza, flOOr New York, NY 10004 Attn: S. Gunsher, Esq. Jay (212) 422-1200 9 of 9