Preview
FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-------------------------------------------------------------------------X INDEX NO.: 618235/2019
MARTHA N. MENDOZA, Sequence No.: 1
Plaintiff(s), AFFIRMATION IN
OPPOSITION
- against -
ASHOK KUMAR, DEEPAK SHARMA, Hon. James P. McCormack
Defendant(s). BM2 File No.: 1057111
-------------------------------------------------------------------------X
DANIEL V. ZYBTSEV, 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 BAKER, McEVOY & MOSKOVITS, P.C.,
attorneys for Defendants, ASHOK KUMAR, and DEEPAK SHARMA (further
"Defendants"), 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
opposition to all noticed relief in the Motion of Plaintiff, MARTHA N. MENDOZA,
including the relief of an Order granting the Plaintiff summary judgment on the
issue of liability.
THIS ACTION SHOULD BE STAYED AND THE INSTANT
MOTION MARKED OFF
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3. "It appearing by suggestion to the court that the defendant has died
and that no order of substitution has been entered, this court cannot decide
the motion, notwithstanding the exceptions, until the defendant is properly
represented"
[emphasis added], Kirke La Shelle Co. v. Armstrong, 173 A.D. 881, 157
N.Y.S. 909, 909 (App. Div. 1916).
4. "Generally, the death of a party divests a court of jurisdiction to act,
and automatically stays proceedings in the action pending *855 the substitution
1015(a)" 2004-
of a legal representative for the decedent pursuant to CPLR (NYCTL
A Trust v. Archer, 131 A.D.3d 1213, 1214, 16 N.Y.S.3d 777; see JP Morgan Chase
Bank, N.A. v. Rosemberg, 90 A.D.3d 713, 714, 934 N.Y.S.2d 346; Neuman v.
Neumann, 85 A.D.3d 1138, 1139, 926 N.Y.S.2d 632). "A motion for substitution
jurisdiction"
pursuant to CPLR 1021 is the method by which the court acquires over
the deceased party's personal representative, and such a motion "is not a mere
technicality"
(Bossert v. Ford Motor Co., 140 A.D.2d 480, 480, 528 N.Y.S.2d 592; see
Singer v. Riskin, 32 A.D.3d 839, 840, 821 N.Y.S.2d 120). "[A]ny determination
nullity"
rendered without such substitution will generally **118 be deemed a (Singer
v. Riskin, 32 A.D.3d at 840, 821 N.Y.S.2d 120; see NYCTL 2004-A Trust v. Archer,
131 A.D.3d at 1214, 16 N.Y.S.3d 777; JP Morgan Chase Bank, N.A. v. Rosemberg, 90
A.D.3d at 714, 934 N.Y.S.2d 346)", see U & Me Homes, LLC v. Cty. of Suffolk, 169
A.D.3d 853, 854-55, 94 N.Y.S.3d 116, 117-18 (2019).
5. "Here, the deceased defendants died before the plaintiff's motion
was made and before the order appealed from was issued. Since a proper
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substitution had not been made, the Supreme Court should not have determined
the merits of the plaintiff's motion, even to the extent that the plaintiff sought
relief against other defendants and nonparties (see American Airlines Fed. Credit
Union v. Costello, 161 A.D. 3d 819, 820, 77 N.Y.S.3d 427; Aurora Bank FSB v.
Albright, 137 A.D.3d 1177, 1179,29 N.Y.S.3d 394; NYCTL 2004-A Trust v. Archer,
131 A.D .3d at 1214, 16 N.Y.S.3d 777) [emphasis added], see U & Me Homes, LLC v.
Cty. of Suffolk, 169 A.D. 3d 853 , 855, 94 N.Y.S.3d 116, 118 (2019) .
6. In the case at bar, similar to U & Me Homes, LLC, Id. , Defendant
ASHOK KUMAR, the Defendant-driver, died on April 1, 2020, see Ex "A", prior to
filing the instant motion. Accordingly, the instant motion should be marked off and
this case should be stayed until such time Plaintiff seeks to have Defendant-driver's
estate be added as a party. "A motion for substitution pursuant to CPLR 1021 is the
method by which the court acquires jurisdiction over the personal representative and
is not a mere technicality. As such, it requires proper notice to and service upon the
personal representative (see , CPLR 1015, 1021; Matter of Einstoss, 26 N.Y.2d 181,
309 N.Y.S.2d 184, 257 N.E.2d 637; Wisdom v. Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d
682; McLaughlin, Supplementary Practice Commentaries, McKinney's Cons. Laws of
N.Y., Book 7B, CPLR C1015:2, at 35 [1988 Cumulative Annual Pocket Part] ). There
is no indication in the record that the personal representative was served with the
stipulation, that he endorsed it or that he authorized the deceased plaintiffs
attorneys to act on his behalf. Their agency as attorneys for the deceased plaintiff
terminated upon his death and any subsequent actions by them on his behalf were
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null and void (see, Hart v. Blabey, 286 N.Y. 75, 35 N.E.2d 657; Hemphill v. Rock, 87
A.D.2d 836,449 N.Y.S.2d 267). Therefore, since no proper substitution of parties was
made prior to the entry of the order denying summary judgment, that order is a
nullity and this court has no jurisdiction to hear and determine the appeal (see ,
Timoner v. North Shore Internal Medicine Assoc., 125 A.D.2d 300, 508 N.Y.S.2d 585;
Muth v. Benjamin, 109 A.D.2d 736, 486 N.Y.S.2d 54; Paul v. Ascher, 106 A.D .2d 619,
483 N.Y.S.2d 422) , see Bossert v. Ford Motor Co., 140 A.D.2d 480, 480, 528 N.Y.S.2d
592, 593 (1988).
7. It should be noted that your Affirmants office only recently found out
about the unfortunate demise of our client.
PLAINTIFF'S MOTION IS PREMATURE AS DISCOVERY IS
INCOMPLETE
8. Plaintiffs motion should be denied as premature as important discovery
remains outstanding. Specifically, all parties' depositions are yet to be held.
Importantly, Defendants now without the benefit of obtaining our own Driver's
affidavit or testimony, hence his unfortunate demise, supra, should be afforded
discovery as to liability including the Plaintiffs deposition before the instant
summary judgment motion is re-calendared.
9. A party should be permitted a reasonable opportunity for discovery
prior to the determination of a motion for summary judgment, see, Berchini v.
Silverite Constr. Co., 289 A.D.2d 434 (2d Dep't 2001); G.E. Capital v. Stephens, 248
A.D.2d 668 (2d Dep't 1998); Urcan v. Cocarelli, 234 A.D.2d 537 (2d Dep't 1996);
Plaza Invs. V. Kim , 208 A.D.2d 704 (2d Dep't 1994).
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10. Additionally, if this court does grant summary judgment on liability,
there is no basis to place this action on the calendar for a damages trial until all
pretrial discovery is completed on damages, including depositions. The discovery
regarding injuries is not complete, independent medical examination have yet to be
conducted. Moreover, a full jury trial on the question of whether or not plaintiffs
sustained a serious injury is warranted.
11. Plaintiff offers no admissible medical proof to support a conclusion that
a serious injury was in fact sustained as a result of the occurrence. Plaintiff can only
establish a serious injury via submission of medical evidence in admissible form, see
Mizrachy v. Jordan, 282 A.D.2d 210 (1st Dep't 2001); Douglass v. Brew's Restaurant,
280 A.D.2d 345 (1st Dep't 2001); Testa v. Koerner Ford of Syracuse, Inc., 261 A.D.2d
866 (4th Dep't 1999); Waaland v. Weiss, 228 A.D.2d 435 (2d Dep't 1996).
12. Moreover, even if such an argument were made by Plaintiff, the issue
would be premature in light of the limited amount of discovery that has taken place
and as Defendants has not been afforded an opportunity to conduct independent
medical examination on the injuries sustained and effects thereof if any. Such
information and discovery especially that would come from a medical examination,
necessarily rests within the exclusive control of the Plaintiff.
SUMMARY JUDGMENT IS INAPPROPRIATE WHERE
GENUINE ISSUES OF MATERIAL FACT EXIST
13. Summary judgment should seldom be granted in automobile negligence
cases. Andre v. Pomeroy, 35 N.Y.2d 131 (1974); Connell v. Buitkant, 17 A.D.2d 944
(1st Dep't 1962); Schneider v. Miecznikowski, 16 A.D.2d 177 (4th Dep't 1962).
5 of 9
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Summary judgment should only be invoked rarely because very often there is a
question of whether the defendant has exercised due care under the circumstances
and whether the accident was unavoidable in light of all the surrounding
circumstances. Ortiz v. Knighton, 14 A.D .2d 679 (1st Dep't 1961); Morales v. River,
14 A.D.2d 752 (1st Dep't 1961).
14. Summary judgment is a drastic remedy because it deprives the litigants
of their day in Court and it should only be employed when there is no doubt as to
the absence of a triable issue of fact. Ugarriza v. Schmeider, 46 N.Y.2d 471
(1979).
15. On a motion for summary judgment, the Courts of this state engage in
issue finding and not issue determining. Thus, where there appears to be a dispute
as to an issue of material fact , summary judgment is not granted and a plenary trial
is ordered. Goodman v. Goodman, 62 A.D.2d 939 (1st Dep't 1978).
16. In automobile negligence actions, the question of fault is ordinarily a
question of fact to be determined by the jury. Foltis Inc. v. City of New York, 287
N.Y. 108; Salomone v. Yellow Taxi Corp., 242 N.Y. 251. Furthermore, the question
of the credibility of the parties involved is in the exclusive domain of the jury.
Sorokon v. Food Fair Stores, 51 A.D.2d 592; Petrofsky v. Drucks, 16 A.D.2d 690.
17. On a motion for summary judgment, movant has the burden to offer
evidence sufficient to eliminate any material issue of fact. Summary judgment will
be denied, even in the absence of opposing papers, where plaintiffs moving affidavits
fail to meet the stringent evidentiary burden placed upon movant. Falk v. Goodman,
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7 N.Y.2d 87,91 (1959); Coley v. Michelin Tire Corporation, 99 A.D.2d 795 (2nd Dep't
1984) (lithe burden of the movant to produce evidentiary facts is greater than on the
opponent") ; Cugini v. System Lumber Co ., Inc., 111 A.D.2d 114 (1st Dep't 1981); Ahl
v. Martin, 82 A.D.2d 938 (3d Dep't1981); Greenberg v. ManIon Realty, Inc. , 43
A.D.2d 968 (2nd Dep't 1974).
18. It is the province of a jury to evaluate the evidence, to assess the
credibility of the parties, and to allot whatever weight it wishes to the witnesses'
testimony. In this case, a jury should be allowed to review the evidence and to hear
the testimony of each witness, and then determine where the fault lies, if any.
Accordingly, summary judgment is improper, and this Court should deny the
Plaintiffs motion for summary judgment, and all other noticed relief.
19. Based on the foregoing, even if this court is inclined to determine fault
at this juncture, there is no basis to proceed to an inquest or damages trial, award
judgment, or limit the Defendants' ability to continue with discovery.
20. In the alternative, should this Court decide to set this matter down for
an assessment of damages, it should be noted that the Defendants is entitled to a
full jury trial on damages.
WHEREFORE, for all the reasons aforesaid, the Defendants respectfully
request that this Court issue an Order marking this motion off and staying this
action or in alternative denying the Plaintiffs Motion in its entirety.
Dated: Brooklyn, New York
February 1, 2021
Yours, etc.,
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BAKER, McEVOY & MOSKOVITS, P.C.
By: DANIEL V. ZYBTSEV
Attorneys for Defendant(s)
ASHOK KUMAR, DEEPAK SHARMA
1 MetroTech 8th Floor
Center,
Brooklyn, New York 11201
Mailing address:
Mail Processing Center
5 Broadway
Freeport, New York 11520
212-857-8230 Ext. 701
dzybtsev@bm3law.com
TO: YAKOV MUSHIYEV & ASSOCIATES, P.C.
Attorneys for Plaintiff(s)
MARTHA N. MENDOZA
One Cross Island Plaza, Suite 325
Rosedale, New York 11422
(718) 775-3110
File No.: YM-19-052
yakov@mushiyevlaw.com
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-------------------------------------------------------------------------}C
MARTHA N. MENDOZA,
Plaintiff(s), Index No.: 618235/2019
-against-
ASHOK KUMAR, DEEPAK SHARMA, BM2 File No: 1057111
Defendant(s).
-------------------------------------------------------------------------}C
AFFIRMATION IN OPPOSITION
Baker, McEvoy & Moskovits, PC
One MetroTech Center
Brooklyn, NY 11201
212-857-8230
Attorneys for Defendant(s):
ASHOK KUMAR and DEEPAK SHARMA
Signed: Pursuant to 22 NYCRR § 130-1.1-a
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Preview
FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------------X INDEX NO.: 618235/2019 MARTHA N. MENDOZA, Sequence No.: 1 Plaintiff(s), AFFIRMATION IN OPPOSITION - against - ASHOK KUMAR, DEEPAK SHARMA, Hon. James P. McCormack Defendant(s). BM2 File No.: 1057111 -------------------------------------------------------------------------X DANIEL V. ZYBTSEV, 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 BAKER, McEVOY & MOSKOVITS, P.C., attorneys for Defendants, ASHOK KUMAR, and DEEPAK SHARMA (further "Defendants"), 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 opposition to all noticed relief in the Motion of Plaintiff, MARTHA N. MENDOZA, including the relief of an Order granting the Plaintiff summary judgment on the issue of liability. THIS ACTION SHOULD BE STAYED AND THE INSTANT MOTION MARKED OFF 1 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 3. "It appearing by suggestion to the court that the defendant has died and that no order of substitution has been entered, this court cannot decide the motion, notwithstanding the exceptions, until the defendant is properly represented" [emphasis added], Kirke La Shelle Co. v. Armstrong, 173 A.D. 881, 157 N.Y.S. 909, 909 (App. Div. 1916). 4. "Generally, the death of a party divests a court of jurisdiction to act, and automatically stays proceedings in the action pending *855 the substitution 1015(a)" 2004- of a legal representative for the decedent pursuant to CPLR (NYCTL A Trust v. Archer, 131 A.D.3d 1213, 1214, 16 N.Y.S.3d 777; see JP Morgan Chase Bank, N.A. v. Rosemberg, 90 A.D.3d 713, 714, 934 N.Y.S.2d 346; Neuman v. Neumann, 85 A.D.3d 1138, 1139, 926 N.Y.S.2d 632). "A motion for substitution jurisdiction" pursuant to CPLR 1021 is the method by which the court acquires over the deceased party's personal representative, and such a motion "is not a mere technicality" (Bossert v. Ford Motor Co., 140 A.D.2d 480, 480, 528 N.Y.S.2d 592; see Singer v. Riskin, 32 A.D.3d 839, 840, 821 N.Y.S.2d 120). "[A]ny determination nullity" rendered without such substitution will generally **118 be deemed a (Singer v. Riskin, 32 A.D.3d at 840, 821 N.Y.S.2d 120; see NYCTL 2004-A Trust v. Archer, 131 A.D.3d at 1214, 16 N.Y.S.3d 777; JP Morgan Chase Bank, N.A. v. Rosemberg, 90 A.D.3d at 714, 934 N.Y.S.2d 346)", see U & Me Homes, LLC v. Cty. of Suffolk, 169 A.D.3d 853, 854-55, 94 N.Y.S.3d 116, 117-18 (2019). 5. "Here, the deceased defendants died before the plaintiff's motion was made and before the order appealed from was issued. Since a proper 2 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 substitution had not been made, the Supreme Court should not have determined the merits of the plaintiff's motion, even to the extent that the plaintiff sought relief against other defendants and nonparties (see American Airlines Fed. Credit Union v. Costello, 161 A.D. 3d 819, 820, 77 N.Y.S.3d 427; Aurora Bank FSB v. Albright, 137 A.D.3d 1177, 1179,29 N.Y.S.3d 394; NYCTL 2004-A Trust v. Archer, 131 A.D .3d at 1214, 16 N.Y.S.3d 777) [emphasis added], see U & Me Homes, LLC v. Cty. of Suffolk, 169 A.D. 3d 853 , 855, 94 N.Y.S.3d 116, 118 (2019) . 6. In the case at bar, similar to U & Me Homes, LLC, Id. , Defendant ASHOK KUMAR, the Defendant-driver, died on April 1, 2020, see Ex "A", prior to filing the instant motion. Accordingly, the instant motion should be marked off and this case should be stayed until such time Plaintiff seeks to have Defendant-driver's estate be added as a party. "A motion for substitution pursuant to CPLR 1021 is the method by which the court acquires jurisdiction over the personal representative and is not a mere technicality. As such, it requires proper notice to and service upon the personal representative (see , CPLR 1015, 1021; Matter of Einstoss, 26 N.Y.2d 181, 309 N.Y.S.2d 184, 257 N.E.2d 637; Wisdom v. Wisdom, 111 A.D.2d 13, 488 N.Y.S.2d 682; McLaughlin, Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C1015:2, at 35 [1988 Cumulative Annual Pocket Part] ). There is no indication in the record that the personal representative was served with the stipulation, that he endorsed it or that he authorized the deceased plaintiffs attorneys to act on his behalf. Their agency as attorneys for the deceased plaintiff terminated upon his death and any subsequent actions by them on his behalf were 3 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 null and void (see, Hart v. Blabey, 286 N.Y. 75, 35 N.E.2d 657; Hemphill v. Rock, 87 A.D.2d 836,449 N.Y.S.2d 267). Therefore, since no proper substitution of parties was made prior to the entry of the order denying summary judgment, that order is a nullity and this court has no jurisdiction to hear and determine the appeal (see , Timoner v. North Shore Internal Medicine Assoc., 125 A.D.2d 300, 508 N.Y.S.2d 585; Muth v. Benjamin, 109 A.D.2d 736, 486 N.Y.S.2d 54; Paul v. Ascher, 106 A.D .2d 619, 483 N.Y.S.2d 422) , see Bossert v. Ford Motor Co., 140 A.D.2d 480, 480, 528 N.Y.S.2d 592, 593 (1988). 7. It should be noted that your Affirmants office only recently found out about the unfortunate demise of our client. PLAINTIFF'S MOTION IS PREMATURE AS DISCOVERY IS INCOMPLETE 8. Plaintiffs motion should be denied as premature as important discovery remains outstanding. Specifically, all parties' depositions are yet to be held. Importantly, Defendants now without the benefit of obtaining our own Driver's affidavit or testimony, hence his unfortunate demise, supra, should be afforded discovery as to liability including the Plaintiffs deposition before the instant summary judgment motion is re-calendared. 9. A party should be permitted a reasonable opportunity for discovery prior to the determination of a motion for summary judgment, see, Berchini v. Silverite Constr. Co., 289 A.D.2d 434 (2d Dep't 2001); G.E. Capital v. Stephens, 248 A.D.2d 668 (2d Dep't 1998); Urcan v. Cocarelli, 234 A.D.2d 537 (2d Dep't 1996); Plaza Invs. V. Kim , 208 A.D.2d 704 (2d Dep't 1994). 4 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 10. Additionally, if this court does grant summary judgment on liability, there is no basis to place this action on the calendar for a damages trial until all pretrial discovery is completed on damages, including depositions. The discovery regarding injuries is not complete, independent medical examination have yet to be conducted. Moreover, a full jury trial on the question of whether or not plaintiffs sustained a serious injury is warranted. 11. Plaintiff offers no admissible medical proof to support a conclusion that a serious injury was in fact sustained as a result of the occurrence. Plaintiff can only establish a serious injury via submission of medical evidence in admissible form, see Mizrachy v. Jordan, 282 A.D.2d 210 (1st Dep't 2001); Douglass v. Brew's Restaurant, 280 A.D.2d 345 (1st Dep't 2001); Testa v. Koerner Ford of Syracuse, Inc., 261 A.D.2d 866 (4th Dep't 1999); Waaland v. Weiss, 228 A.D.2d 435 (2d Dep't 1996). 12. Moreover, even if such an argument were made by Plaintiff, the issue would be premature in light of the limited amount of discovery that has taken place and as Defendants has not been afforded an opportunity to conduct independent medical examination on the injuries sustained and effects thereof if any. Such information and discovery especially that would come from a medical examination, necessarily rests within the exclusive control of the Plaintiff. SUMMARY JUDGMENT IS INAPPROPRIATE WHERE GENUINE ISSUES OF MATERIAL FACT EXIST 13. Summary judgment should seldom be granted in automobile negligence cases. Andre v. Pomeroy, 35 N.Y.2d 131 (1974); Connell v. Buitkant, 17 A.D.2d 944 (1st Dep't 1962); Schneider v. Miecznikowski, 16 A.D.2d 177 (4th Dep't 1962). 5 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 Summary judgment should only be invoked rarely because very often there is a question of whether the defendant has exercised due care under the circumstances and whether the accident was unavoidable in light of all the surrounding circumstances. Ortiz v. Knighton, 14 A.D .2d 679 (1st Dep't 1961); Morales v. River, 14 A.D.2d 752 (1st Dep't 1961). 14. Summary judgment is a drastic remedy because it deprives the litigants of their day in Court and it should only be employed when there is no doubt as to the absence of a triable issue of fact. Ugarriza v. Schmeider, 46 N.Y.2d 471 (1979). 15. On a motion for summary judgment, the Courts of this state engage in issue finding and not issue determining. Thus, where there appears to be a dispute as to an issue of material fact , summary judgment is not granted and a plenary trial is ordered. Goodman v. Goodman, 62 A.D.2d 939 (1st Dep't 1978). 16. In automobile negligence actions, the question of fault is ordinarily a question of fact to be determined by the jury. Foltis Inc. v. City of New York, 287 N.Y. 108; Salomone v. Yellow Taxi Corp., 242 N.Y. 251. Furthermore, the question of the credibility of the parties involved is in the exclusive domain of the jury. Sorokon v. Food Fair Stores, 51 A.D.2d 592; Petrofsky v. Drucks, 16 A.D.2d 690. 17. On a motion for summary judgment, movant has the burden to offer evidence sufficient to eliminate any material issue of fact. Summary judgment will be denied, even in the absence of opposing papers, where plaintiffs moving affidavits fail to meet the stringent evidentiary burden placed upon movant. Falk v. Goodman, 6 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 7 N.Y.2d 87,91 (1959); Coley v. Michelin Tire Corporation, 99 A.D.2d 795 (2nd Dep't 1984) (lithe burden of the movant to produce evidentiary facts is greater than on the opponent") ; Cugini v. System Lumber Co ., Inc., 111 A.D.2d 114 (1st Dep't 1981); Ahl v. Martin, 82 A.D.2d 938 (3d Dep't1981); Greenberg v. ManIon Realty, Inc. , 43 A.D.2d 968 (2nd Dep't 1974). 18. It is the province of a jury to evaluate the evidence, to assess the credibility of the parties, and to allot whatever weight it wishes to the witnesses' testimony. In this case, a jury should be allowed to review the evidence and to hear the testimony of each witness, and then determine where the fault lies, if any. Accordingly, summary judgment is improper, and this Court should deny the Plaintiffs motion for summary judgment, and all other noticed relief. 19. Based on the foregoing, even if this court is inclined to determine fault at this juncture, there is no basis to proceed to an inquest or damages trial, award judgment, or limit the Defendants' ability to continue with discovery. 20. In the alternative, should this Court decide to set this matter down for an assessment of damages, it should be noted that the Defendants is entitled to a full jury trial on damages. WHEREFORE, for all the reasons aforesaid, the Defendants respectfully request that this Court issue an Order marking this motion off and staying this action or in alternative denying the Plaintiffs Motion in its entirety. Dated: Brooklyn, New York February 1, 2021 Yours, etc., 7 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 BAKER, McEVOY & MOSKOVITS, P.C. By: DANIEL V. ZYBTSEV Attorneys for Defendant(s) ASHOK KUMAR, DEEPAK SHARMA 1 MetroTech 8th Floor Center, Brooklyn, New York 11201 Mailing address: Mail Processing Center 5 Broadway Freeport, New York 11520 212-857-8230 Ext. 701 dzybtsev@bm3law.com TO: YAKOV MUSHIYEV & ASSOCIATES, P.C. Attorneys for Plaintiff(s) MARTHA N. MENDOZA One Cross Island Plaza, Suite 325 Rosedale, New York 11422 (718) 775-3110 File No.: YM-19-052 yakov@mushiyevlaw.com 8 of 9 FILED: NASSAU COUNTY CLERK 02/01/2021 01:27 PM INDEX NO. 618235/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/01/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------------}C MARTHA N. MENDOZA, Plaintiff(s), Index No.: 618235/2019 -against- ASHOK KUMAR, DEEPAK SHARMA, BM2 File No: 1057111 Defendant(s). -------------------------------------------------------------------------}C AFFIRMATION IN OPPOSITION Baker, McEvoy & Moskovits, PC One MetroTech Center Brooklyn, NY 11201 212-857-8230 Attorneys for Defendant(s): ASHOK KUMAR and DEEPAK SHARMA Signed: Pursuant to 22 NYCRR § 130-1.1-a 9 of 9