Preview
FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017
SUPREMECOURTOF THE STATE OFNEWYORK
COUNTY OF KINGS
x
TAMEKAMATTHEWS,
Plaintiff, AFFIRMATIONIN
OPPOSITION
against -
Index No: 521350/2016
File No: 2016-050224
THE CITY OFNEWYORK,NEWYORKCITY FIRE
DEPARTMENT, and JOSEPHA. WILLIAMS,
Defendants
LORA MINICUCCI, an attorney admitted to practice before the Courts of the
State of New York and an Assistant Corporation Counsel of the City of New York, affirms the
truth of the following under the penalty of perjury pursuant to CPLRRule 2106 based upon the
files maintainedin the officeof said Corporation Counsel.
1. This affirmation is submitted by THE CITY OF NEW YORK, NEW
YORK CITY FIRE DEPARTMENT and JOSEPH A. WILLIAMS (hereinafter "City"), in
opposition to plaintiff TAMEKA MATTHEWS' (hereinafter "Plaintiff) motion for summary
judgment on the issue ofliabilityagainstthe City.
2. This is an action for personal injuries allegedly sustained by plaintiff on
December29, 2015, when she was involved in a motor vehicle accidentwith a vehicle drivenby
New York City Fire Department employee JOSEPH A. WILLIAMS (hereinafter "Mr.
Williams") at the intersection ofEastNewYork andUtica Avenue, Brooklyn, NewYork.
3. Plaintiff makes this premature motion for summary judgment before
examinations before trial have been held. Nevertheless, plaintiff believes she is entitled to
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summary judgment on the issue of liability based solely on plaintiffs self-serving testimony
given at a hearing held pursuant to General Municipal Law 50-h, annexed to the moving papers
at Exhibit"H." The relevant part quoted in Plaintiffspapers Plaintiffstates that shewas stopped
at a red light in the left turning lane on Utica Avenue at the intersection of East New York
Avenue when she was hit from behind by an ambulance. Plaintiff also annexes the MV-104
Police AccidentReport at Exhibit"I" oftheirmovingpapers.
4. Annexed hereto as EXHIBIT A is an affidavit of Mr. Williams. Mr.
Williams attests:
I was traveling southbound on Utica Avenue, and
stopped at a red light at the intersection ofEastNewYork Avenue.
When the light turned green, the vehicle in front of me proceeded
forward but then suddenly and unexpectedly slowed down. At the
time, I was looking straight ahead and traveling about 8 mph. I was
at least one car length awayfrom the othervehicle whenit abruptly
slowed down. I applied the brake, but the rain and wet roadway
caused me to skid and I was unable to stop my vehicle in time to
prevent a collision. I did not see any brake lights coming from the
vehicle ahead of me which would have alerted me to an abmpt
changein speed.
5. Based on Mr. Williams's sworn affidavit, and on the following legal
principles, the City respectfully submits that summaryjudgment on liability is wholly improper
in the case at bar.
ARGUMENT
SUMMARYJUDGMENTMUSTBE DENIEDBECAUSETHEREARE NON-
NEGLIGENTEXPLANATIONSFORTHE SUBJECTACCIDENTAND PLAINTIFF
HAS FAILED TO SET FORTH EVIDENCE THAT SHE IS FREE FROM
COMPARATIVE FAULT
6. The purpose of summaryjudgment is to dispose of claims which can be
disposed of as a matter of law. Andre v. Pomero , 35 N.Y. 2d 361 (1974). "It is well
established that the 'drastic remedy' of summaryjudgment does not lie where there is any doubt
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as to the existence of triable issues of fact." Estate ofDavis b Hammond v. State, 157 A.D. 2d
205 (1st Dept. 1990). "The proponent of a motion for summary judgment must make a prima
facie showingof entitlement ofjudgment as a matter of law by the tender of sufficient evidence
to eliminate any material issues of fact from the case." Anderson v. Betz, 150 AD2d 743 (2nd
Dep't 1989); Ellis v. Allstate Ins. Co., 151 A.D.2d 543 (2d Dep't 1989); Narciso v. Ford Motor
Co.. 137 A.D.2d 508 (2d Dep't 1988). Irrespective ofoppositionto themotion, "[w]hereplaintiff
fails to meet this burden, the motion should be denied... " Pastoriza v. State of New York, 108
A. D. 2d 605, 606 (1st Dep't 1985); see also Elhs.. 151 A.D.2d at 543 ("Inasmuch as the plaintiff
has failed to establishprima facie entitlement to judgment as a matter of law, his contention that
thepapers submitted in oppositionto themotion were legally inadequateis renderedirrelevant").
7. "Since [summary judgment] deprives the litigant of his day in court it is
considered a drastic remedy which should only be employed when there is no doubt as to the
absence of taxable issues." Komfeld v. NRX Technolo "es Inc., 62 N.Y.2d 686 (1984);
U arizzav. Schmieder, 46 N.Y.2d 471 (1979); Museums at Ston Brook, 146 A.D.2d 572 (2d
Dep't 1989). Ifthere is a genuineissue offact found to exist or if the existence ofa factual issue
is arguable or debatable summary judgment must be denied. Su er v. Abdelazim, 108 A.D.
1040, 485 N.Y.S.2d 612 (1985). The function of a court when determining such a motion is
issue finding, not issue determination. Sillman v. Twentieth Centur, Fox, 3 N.Y. 2d 395 (1957).
Moreover, the evidence presented on summary judgment must be scmtinized in the light most
favorable to the party opposing the motion. Corvino v. Mount Pleasant Cent. Sch. Dist., 305
A. D. 2d 364 (2d Dep't 2003).
8. The law on rear-end collisions is well settled. In Amador v Cit of New
York, the SecondDepartmentrecently affirmed:
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A rear-end collision with a stopped or stopping vehicle establishes a
prima facie case ofnegligenceon the part ofthe operator ofthe rear
vehicle, thereby requiring that operator to rebut the inference of
negligence by providing a nonnegligent explanation for the
collision. One of several nonnegligent explanations for a rear-
end collision is a sudden stop of the lead vehicle. There can be
more than one proximate cause of an accident, and the proponent of
a summary judgment motion has the burden of establishing
freedom from comparative fault as a matter of law. (internal
citations omitted)
2014 N.Y. App. Div. LEXIS5694 (2d Dep't Aug. 13, 2014). See also Morrison v. Montzoutsos,
40 A. D.3d 717 (2ndDept. 2007) (the rear vehicle rebutted the prima facie showing "by adducing
evidence that the accident resulted from [the plaintiffs] sudden and unexplained stop in the left
lane of the roadway without giving a proper signal "); uezada v. A uino 38 A.D.3d 873 (2
Dept. 2007) ("the papers submitted in opposition to the motion were sufficientto raise a triable
issue of fact as to whether [the front vehicle] contributed to the accidentby making a suddenand
unexplained stop "); John v. Le ba, 38 A. D. 3d 496 (2nd Dept. 2007) ("where the fi-ontmost
driver also operates his vehicle in a negligent manner, the issue of comparative negligenceis for
a jury to decide").
9. Furthermore, another example of a non-negligent explanation for a rear
end collision is sudden break failure or a mechanical defect. See MacWhinnie v. Nu ent, 28
A.D.3d 431 (2d Dep't 2006) ("the defendants made a prima facie showing of entitlement to
judgment as a matter of law on the basis that they were unaware of a mechanical defect which
could cause the vehicle's transmission to slip out of park into reverse, and that they made
reasonable efforts to maintain the vehicle in a safe manner"); Schuster v. Ambo Bus Co., 267
A.D.2d 448 (2d Dep't 1999) ("wherethe operator ofthe moving vehicle alleges that the accident
was the result of brake failure and presents evidence that the brake problem was unanticipated
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and that reasonable care had been exercised to keep the brakes in good working order, he or she
has demonstrated a non-negligent explanation for the happening ofthe accident").
10. Finally, "not every rear-end collision is the exclusive fault ofthe rearmost
driver. The front most driver also has the duty not to stop suddenly or slow down without proper
signaling so as to avoid a collision." Gaeta v. Carter, 6 A.D.3d 576 (2d Dep't 2004). The
Second Department has stated that "[t]he fact that a codefendant might be negligent as a matter
of law for rear-ending a stopped vehicle does not mean that the operator of the stopped vehicle
wasnecessarilyfree ofnegligence." Fitz erald v. N.Y. Cit Transit Auth., 2 A.D.3d 577, 578 (2d
Dep't 2003).
11. Applying the aforementioned principles to the case at bar, the City
respectfully submits that plaintiffs premature summaryjudgment motion must be denied in its
entirety. There are numerous questions of fact as to the mechanics of the accident. Plaintiff
claims that she was stopped at a red light, Mr. Williams' affidavit states that they were both
proceeding towards a green light. Plaintiffclaims that she was stopped, Mr. Williams states that
both vehicles were moving at the time of the collision and that plaintiffs brake lights were not
engaged (See plaintiffs Exhibit H pp 33-34 and defendant's Exhibit A). Clearly, the parties
should have an opportunity to conduct dqiositions and inquire about the circumstances
surroundingthis accident andthese questions offact.
12. Additionally, Mr. William's affidavit establishes a non-negligent
explanation for the accident: namely that the plaintiffslowed down suddenly and that her brake
lights did not appear, leavingMr. Williamsno choicebut to suddenlyhit thebrakes. Inasmuchas
plaintiff's sudden slow down caused Mr. Williams to break without warning, the instant
summaryjudgment motion on liability shouldbe denied at thisjuncture.
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13. Finally, plaintiffs movingpapers do not establishplaintiffs freedom from
comparative fault. Specifically, Mr. Williams states that plaintiffstopped suddenly near a green
light. Although plaintiff submits that she was stopped for at a red light prior to impact, Mr.
Williams attests that plaintiffs brake lights were not activated before the vehicles collided.
Thus, there are numerous questions of factthat warrantthe denial ofthe instant motion.
14. In sum, summary judgment should only be granted where there are no
triable issues of fact left for thejury to decide. Although counsel contends that there are no such
triable issues, the foregoing unequivocally established that numerous questions of fact do exist.
Accordingly, the instant motion for summaryjudgment shouldbe deniedin its entirety.
WHEREFORE, it is respectfully requested that plaintiffs motion be denied in its
entirety, alongwith such other andfurtherreliefas to this Court may seemjust andproper.
Dated: Brooklyn, New York
July ,,, 2017
L RAMINICUCCI
Assistant Corporation Counsel
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Index No. : 521350/2016
SUPREMECOURT OF THE STATE OFNEWYORK
COUNTY OF KINGS
TAMEKAMATTHEWS,
Plaintiff,
against -
THE CITY OFNEWYORK,NEWYORKCITY FIRE
DEPARTMENT,andJOSEPHA. WILLIAMS,
Defendants
AFFIRMATION TN OPPOSITION
ZACHARYW. CARTER
Corporation Counselofthe City ofNe-wYork
Attorney for Defendant
350 JayStreet
Brooklyn, New York 11201-2908
Of Counsel: Lora Minicucci
Tel: (718) 780-2531
NYCLISNo. 2013-058794
Dueandtimely service is hereby admitted.
Brooklyn, N. Y. ....................................... ,
200...
.
Esq.
Attorne or.
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Preview
FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017 SUPREMECOURTOF THE STATE OFNEWYORK COUNTY OF KINGS x TAMEKAMATTHEWS, Plaintiff, AFFIRMATIONIN OPPOSITION against - Index No: 521350/2016 File No: 2016-050224 THE CITY OFNEWYORK,NEWYORKCITY FIRE DEPARTMENT, and JOSEPHA. WILLIAMS, Defendants LORA MINICUCCI, an attorney admitted to practice before the Courts of the State of New York and an Assistant Corporation Counsel of the City of New York, affirms the truth of the following under the penalty of perjury pursuant to CPLRRule 2106 based upon the files maintainedin the officeof said Corporation Counsel. 1. This affirmation is submitted by THE CITY OF NEW YORK, NEW YORK CITY FIRE DEPARTMENT and JOSEPH A. WILLIAMS (hereinafter "City"), in opposition to plaintiff TAMEKA MATTHEWS' (hereinafter "Plaintiff) motion for summary judgment on the issue ofliabilityagainstthe City. 2. This is an action for personal injuries allegedly sustained by plaintiff on December29, 2015, when she was involved in a motor vehicle accidentwith a vehicle drivenby New York City Fire Department employee JOSEPH A. WILLIAMS (hereinafter "Mr. Williams") at the intersection ofEastNewYork andUtica Avenue, Brooklyn, NewYork. 3. Plaintiff makes this premature motion for summary judgment before examinations before trial have been held. Nevertheless, plaintiff believes she is entitled to 1 of 7 FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017 summary judgment on the issue of liability based solely on plaintiffs self-serving testimony given at a hearing held pursuant to General Municipal Law 50-h, annexed to the moving papers at Exhibit"H." The relevant part quoted in Plaintiffspapers Plaintiffstates that shewas stopped at a red light in the left turning lane on Utica Avenue at the intersection of East New York Avenue when she was hit from behind by an ambulance. Plaintiff also annexes the MV-104 Police AccidentReport at Exhibit"I" oftheirmovingpapers. 4. Annexed hereto as EXHIBIT A is an affidavit of Mr. Williams. Mr. Williams attests: I was traveling southbound on Utica Avenue, and stopped at a red light at the intersection ofEastNewYork Avenue. When the light turned green, the vehicle in front of me proceeded forward but then suddenly and unexpectedly slowed down. At the time, I was looking straight ahead and traveling about 8 mph. I was at least one car length awayfrom the othervehicle whenit abruptly slowed down. I applied the brake, but the rain and wet roadway caused me to skid and I was unable to stop my vehicle in time to prevent a collision. I did not see any brake lights coming from the vehicle ahead of me which would have alerted me to an abmpt changein speed. 5. Based on Mr. Williams's sworn affidavit, and on the following legal principles, the City respectfully submits that summaryjudgment on liability is wholly improper in the case at bar. ARGUMENT SUMMARYJUDGMENTMUSTBE DENIEDBECAUSETHEREARE NON- NEGLIGENTEXPLANATIONSFORTHE SUBJECTACCIDENTAND PLAINTIFF HAS FAILED TO SET FORTH EVIDENCE THAT SHE IS FREE FROM COMPARATIVE FAULT 6. The purpose of summaryjudgment is to dispose of claims which can be disposed of as a matter of law. Andre v. Pomero , 35 N.Y. 2d 361 (1974). "It is well established that the 'drastic remedy' of summaryjudgment does not lie where there is any doubt 2 of 7 FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017 as to the existence of triable issues of fact." Estate ofDavis b Hammond v. State, 157 A.D. 2d 205 (1st Dept. 1990). "The proponent of a motion for summary judgment must make a prima facie showingof entitlement ofjudgment as a matter of law by the tender of sufficient evidence to eliminate any material issues of fact from the case." Anderson v. Betz, 150 AD2d 743 (2nd Dep't 1989); Ellis v. Allstate Ins. Co., 151 A.D.2d 543 (2d Dep't 1989); Narciso v. Ford Motor Co.. 137 A.D.2d 508 (2d Dep't 1988). Irrespective ofoppositionto themotion, "[w]hereplaintiff fails to meet this burden, the motion should be denied... " Pastoriza v. State of New York, 108 A. D. 2d 605, 606 (1st Dep't 1985); see also Elhs.. 151 A.D.2d at 543 ("Inasmuch as the plaintiff has failed to establishprima facie entitlement to judgment as a matter of law, his contention that thepapers submitted in oppositionto themotion were legally inadequateis renderedirrelevant"). 7. "Since [summary judgment] deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of taxable issues." Komfeld v. NRX Technolo "es Inc., 62 N.Y.2d 686 (1984); U arizzav. Schmieder, 46 N.Y.2d 471 (1979); Museums at Ston Brook, 146 A.D.2d 572 (2d Dep't 1989). Ifthere is a genuineissue offact found to exist or if the existence ofa factual issue is arguable or debatable summary judgment must be denied. Su er v. Abdelazim, 108 A.D. 1040, 485 N.Y.S.2d 612 (1985). The function of a court when determining such a motion is issue finding, not issue determination. Sillman v. Twentieth Centur, Fox, 3 N.Y. 2d 395 (1957). Moreover, the evidence presented on summary judgment must be scmtinized in the light most favorable to the party opposing the motion. Corvino v. Mount Pleasant Cent. Sch. Dist., 305 A. D. 2d 364 (2d Dep't 2003). 8. The law on rear-end collisions is well settled. In Amador v Cit of New York, the SecondDepartmentrecently affirmed: 3 of 7 FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017 A rear-end collision with a stopped or stopping vehicle establishes a prima facie case ofnegligenceon the part ofthe operator ofthe rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision. One of several nonnegligent explanations for a rear- end collision is a sudden stop of the lead vehicle. There can be more than one proximate cause of an accident, and the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law. (internal citations omitted) 2014 N.Y. App. Div. LEXIS5694 (2d Dep't Aug. 13, 2014). See also Morrison v. Montzoutsos, 40 A. D.3d 717 (2ndDept. 2007) (the rear vehicle rebutted the prima facie showing "by adducing evidence that the accident resulted from [the plaintiffs] sudden and unexplained stop in the left lane of the roadway without giving a proper signal "); uezada v. A uino 38 A.D.3d 873 (2 Dept. 2007) ("the papers submitted in opposition to the motion were sufficientto raise a triable issue of fact as to whether [the front vehicle] contributed to the accidentby making a suddenand unexplained stop "); John v. Le ba, 38 A. D. 3d 496 (2nd Dept. 2007) ("where the fi-ontmost driver also operates his vehicle in a negligent manner, the issue of comparative negligenceis for a jury to decide"). 9. Furthermore, another example of a non-negligent explanation for a rear end collision is sudden break failure or a mechanical defect. See MacWhinnie v. Nu ent, 28 A.D.3d 431 (2d Dep't 2006) ("the defendants made a prima facie showing of entitlement to judgment as a matter of law on the basis that they were unaware of a mechanical defect which could cause the vehicle's transmission to slip out of park into reverse, and that they made reasonable efforts to maintain the vehicle in a safe manner"); Schuster v. Ambo Bus Co., 267 A.D.2d 448 (2d Dep't 1999) ("wherethe operator ofthe moving vehicle alleges that the accident was the result of brake failure and presents evidence that the brake problem was unanticipated 4 of 7 FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017 and that reasonable care had been exercised to keep the brakes in good working order, he or she has demonstrated a non-negligent explanation for the happening ofthe accident"). 10. Finally, "not every rear-end collision is the exclusive fault ofthe rearmost driver. The front most driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision." Gaeta v. Carter, 6 A.D.3d 576 (2d Dep't 2004). The Second Department has stated that "[t]he fact that a codefendant might be negligent as a matter of law for rear-ending a stopped vehicle does not mean that the operator of the stopped vehicle wasnecessarilyfree ofnegligence." Fitz erald v. N.Y. Cit Transit Auth., 2 A.D.3d 577, 578 (2d Dep't 2003). 11. Applying the aforementioned principles to the case at bar, the City respectfully submits that plaintiffs premature summaryjudgment motion must be denied in its entirety. There are numerous questions of fact as to the mechanics of the accident. Plaintiff claims that she was stopped at a red light, Mr. Williams' affidavit states that they were both proceeding towards a green light. Plaintiffclaims that she was stopped, Mr. Williams states that both vehicles were moving at the time of the collision and that plaintiffs brake lights were not engaged (See plaintiffs Exhibit H pp 33-34 and defendant's Exhibit A). Clearly, the parties should have an opportunity to conduct dqiositions and inquire about the circumstances surroundingthis accident andthese questions offact. 12. Additionally, Mr. William's affidavit establishes a non-negligent explanation for the accident: namely that the plaintiffslowed down suddenly and that her brake lights did not appear, leavingMr. Williamsno choicebut to suddenlyhit thebrakes. Inasmuchas plaintiff's sudden slow down caused Mr. Williams to break without warning, the instant summaryjudgment motion on liability shouldbe denied at thisjuncture. 5 of 7 FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017 13. Finally, plaintiffs movingpapers do not establishplaintiffs freedom from comparative fault. Specifically, Mr. Williams states that plaintiffstopped suddenly near a green light. Although plaintiff submits that she was stopped for at a red light prior to impact, Mr. Williams attests that plaintiffs brake lights were not activated before the vehicles collided. Thus, there are numerous questions of factthat warrantthe denial ofthe instant motion. 14. In sum, summary judgment should only be granted where there are no triable issues of fact left for thejury to decide. Although counsel contends that there are no such triable issues, the foregoing unequivocally established that numerous questions of fact do exist. Accordingly, the instant motion for summaryjudgment shouldbe deniedin its entirety. WHEREFORE, it is respectfully requested that plaintiffs motion be denied in its entirety, alongwith such other andfurtherreliefas to this Court may seemjust andproper. Dated: Brooklyn, New York July ,,, 2017 L RAMINICUCCI Assistant Corporation Counsel 6 of 7 FILED: KINGS COUNTY CLERK 07/11/2017 04:08 PM INDEX NO. 521350/2016 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 07/11/2017 Index No. : 521350/2016 SUPREMECOURT OF THE STATE OFNEWYORK COUNTY OF KINGS TAMEKAMATTHEWS, Plaintiff, against - THE CITY OFNEWYORK,NEWYORKCITY FIRE DEPARTMENT,andJOSEPHA. WILLIAMS, Defendants AFFIRMATION TN OPPOSITION ZACHARYW. CARTER Corporation Counselofthe City ofNe-wYork Attorney for Defendant 350 JayStreet Brooklyn, New York 11201-2908 Of Counsel: Lora Minicucci Tel: (718) 780-2531 NYCLISNo. 2013-058794 Dueandtimely service is hereby admitted. Brooklyn, N. Y. ....................................... , 200... . Esq. Attorne or. 7 of 7