Preview
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------·-------------------------------------------------------X
ROBIN ELLIS, Index No.: 607676/2023
Plaintiff, ATTORNEY
. AFFIRMATION IN
SUPPORT OF MOTION
THE VILLAGE OF ROCKVILLE CENTRE FOR SUMMARY
and MICHAEL E. OSWALD, JUDGMENT
Defendants.
______________________________________________________________________Ç
KATHERINE A. SAWICKI, ESQ. an attorney duly admitted to practice law before the
Courts of the State of New York, aware of the penalties for perjury, duly affirms the following:
1. I am an associate at THE LAW OFFICE OF COHEN & JAFFE, LLP, attorneys of
record for the Plaintiff herein, ROBIN ELLIS. Based upon a review of the file maintained by my
office, I am fully familiar with all the facts, circumstances, pleadings and proceedings heretofore
and herein.
2. I respectfully submit this affirmation in support of the Plaintiff's instant application
for an Order: 1) granting summary judgment on the issue of liability pursuant to C.P.L.R. §3212
Defendants'
for Plaintiff; 2) Striking Second Affirmative Defense of Failure to Use Seatbelts; 3)
Defendants'
Striking Third Affirmative Defense of Culpable Conduct/Contributory Negligence of
Plaintiff; and for such other and further relief as this Court may deem just and proper.
3. The underlying action is brought to recover money damages for serious personal
injuries sustained by the Plaintiff ROBIN ELLIS, (hereinafter "Plaintiff"), as a result of a motor
vehicle accident which occurred on April 29, 2022, at approximately 3:25 P.M. on Cedar Avenue,
at or near its intersection with Hempstead Avenue, in the Village of Rockville Centre, County of
Nassau and State of New York.
1 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
L PROCEDURAL BACKGROUND
4. This action was commenced by Plaintiff's e-filing of a Summons and Complaint
dated May 12, 2023 a true and accurate copy of which is annexed hereto as Exhibit 1.
Defendants'
5. Issue was duly joined by service of Answer dated June 23, 2023, a true
and accurate copy of which is annexed hereto as Exhibit 2.
6. On September 1, 2023, Plaintiff served on the Defendants a Bill of Particulars, a
true and accurate copy of which is annexed hereto as Exhibit 3.
7. To date, the Defendants have not taken the deposition of Plaintiff nor have the
Defendants moved to compel it.
8. In further support of this motion, a sworn Affidavit of ROBIN ELLIS dated October
26, 2023, containing a recitation of the facts of this accident in admissible form, is annexed hereto
as Exhibit 4.
9. In his Affidavit, Plaintiff sets forth he was stopped at a stop sign on westbound
Cedar Avenue at its intersection with Hempstead Avenue, when Defendant-Driver MICHAEL E.
OSWALD, who was attempting to turn right from northbound Hempstead Avenue to proceed
eastbound down Cedar Avenue, made a wide right turn and struck Plaintiff's stopped vehicle.
IL FACTUAL BACKGROUND
10. Annexed hereto and marked as Exhibit 4 is an affidavit of ROBIN ELLIS dated
October 26, 2023.
11. Specifically, in his Affidavit, Plaintiff ROBIN ELLIS sets forth, in admissible
form, that:
a) On April 29, 2022, at approximately 3:25 p.m., on a clear and dry day,
Plaintiff ROBIN ELLIS was the driver of a 2013 BMW motor vehicle
bearing New Jersey State license plate number 361559T on Cedar Avenue
2 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
at its intersection with Hempstead Avenue, in the County of Nassau, State
of New York. See Ex. 4 at 73.
b) Prior to the impact, Plaintiff ROBIN ELLIS's vehicle was stopped for a stop
sign while heading westbound on Cedar Avenue, at its intersection with
Hempstead Avenue. See Ex. 4 at 74.
c) Cedar Avenue at its intersection with Hempstead Avenue is a straight and
level two-way roadway, allowing vehicles to travel in eastbound and
westbound directions, with one lane for moving traffic in each direction.
Westbound traffic on Cedar Avenue is controlled by a stop sign at this
intersection. See Ex. 4 at 75.
d) Hempstead Avenue at its intersection with Cedar Avenue is a straight and
level two-way roadway, allowing vehicles to travel in northbound and
southbound directions, with one lane for moving traffic in each direction,
separated by solid double yellow lines. Traffic on Hempstead Avenue
is not controlled by a stop sign, nor any other traffic control device
at this intersection. See Ex. 4 at 76.
e) A true and accurate photograph of the roadway where the collision
occurred is attached with this affidavit. The photograph depicts the
vista of a vehicle travelling westbound on Cedar Avenue, at its intersection
with Hempstead Avenue. See Ex. 4 at 77.
f) Plaintiff ROBIN ELLIS's car was the first car that was stopped at the stop
sign on westbound Cedar Avenue, at its intersection with Hempstead
Turnpike. Plaintiff ROBIN ELLIS had his right turn signal illuminated,
and intended on making a right turn onto Hempstead Avenue. See Ex. 4 at 78.
g) Plaintiff ROBIN ELLIS had been stopped for approximately thirty seconds
when a 2016 Chevrolet Bus motor vehicle bearing New York State license
plate number AY8768 was traveling northbound on Hempstead Avenue,
and suddenly and without warning, made a wide right turn onto Cedar
Avenue and struck the driver's front side of Plaintiff ROBIN ELLIS's
vehicle. See Ex. 4 at 79.
h) Plaintiff ROBIN ELLIS later came to learn that the 2016 Chevrolet bus
motor vehicle that struck his vehicle was owned by defendant, THE
VILLAGE OF ROCKVILLE CENTRE, and operated by defendant,
MICHAEL E. OSWALD, of whom are defendants in this action. See Ex. 4
at F10.
i) At the time of the accident, there was no construction, debris or other
obstructions on that section of the roadway in either direction. See Ex. 4 at
711.
j) At the time of the impact, Plaintiff ROBIN ELLIS's vehicle was fully
stopped. His foot was on the brake, and his brake and brake lights were
operational. See Ex. 4 at 712.
3 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
k) Plaintiff ROBIN ELLIS did nothing to cause or contribute to the happening
of this accident. See Ex. 4 at 713.
1) The Defendant gave no warning before he struck Plaintiff ROBlN ELLIS's
vehicle. Before the impact, there were no sounds of any horns or screeching
brakes coming from the 2016 Chevrolet bus motor vehicle. See Ex. 4 at 714
m) At all times prior to and during the impact, Plaintiff ROBIN ELLIS was
wearing his seatbelt. See Ex. 4 at 715.
n) Plaintiff ROBIN ELLIS's seatbelt was fully functional and extended over
his lap and shoulders, and Plaintiff ROBIN ELLIS needed to unclip his
seatbelt to exit his vehicle after the accident. See Ex. 4 at 716.
12. As a result of this impact, Plaintiff ROBIN ELLIS, was caused to sustain serious,
severe and permanent injuries, those of which he continues to suffer from to date.
IIL ARGUMENT
A. The Summary Judgment Standard
13. Plaintiff is entitled to summary judgment on the issue of liability as a matter of law.
A Court will not "strain to find issues, however nebulous, which may preserve an unfounded claim
negotiations,"
for litigation or Donlon v. Pugliese, 27 A.D.2d 786, 787 (3d Dep't 1967), and will
not accept from the Defendant "mere conclusions, expressions of hope or unsubstantiated
assertions"
allegations or in opposition to a motion for summary judgment. Zuckerman v. City of
New York, 49 N.Y.2d 557, 562 (1980).
14. The Court of Appeals has recognized that summary judgment is appropriate when
there is no viable question as to liability. See Andre v. Pomeroy, 35 N.Y.2d 361, 362 (1974). In
Andre, the Court cogently stated:
"Since it [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 triable
issues...But when there is no genuine issue to be resolved at trial,
the case should be summarily decided, and an unfounded reluctance
to employ the remedy will only serve to swell the Trial Calendar
and, thus, deny to other litigants the right to have their claims
adjudicated."
properly
4 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
The Court further stated that summary judgment is appropriate when:
"there is no conflict at all in the evidence, that defendants conduct
fell far below any permissible standard of due care, and plaintiffs
involved."
conduct. . . was not really Id.
15. Such is the case herein where there is no evidence of comparative negligence on
Defendants'
the part of the Plaintiff, but rather, only that he was merely the victim of negligence.
B. The Motion Is Not Premature
16. This motion should be granted despite the fact that it is made before depositions
have been conducted. It is well-settled law that a party opposing summary judgment must present
evidence in admissible form sufficient to raise a triable issue of fact. The Appellate Courts have
consistently upheld the propriety of pre-deposition summary judgment motions. See Weinberg v.
JAF Color Labs, Inc., 57 A.D.3d 769, 769 (2d Dep't 2008) (holding that "defendants failed to offer
an evidentiary basis demonstrating that further discovery may lead to relevant evidence, as opposed
uncover"
to mere hope and speculation as to what additional discovery would and therefore summary
judgment was properly granted to plaintiff); Torres v. American Bldg. Maintenance Co. of N Y, 51
A.D.3d 905, 906 (2d Dep't 2008) (holding that plaintiff had properly established threshold for
plaintiffs'
summary judgment and that defendants had not offered any evidence of comparative
negligence and further that failure "to offer an evidentiary basis demonstrating that further discovery
may lead to relevant evidence, as opposed to mere hope and speculation as to what additional
uncover"
discovery would was insufficient to deny summary judgment); Belitsis v. Airborne Express
Freight Corp., 306 A.D.2d 507, 508 (2d Dep't 2003) (holding that "Since the facts concerning the
accident are undisputed, the Supreme Court properly granted the plaintiffs motion before depositions
were conducted"); Zabusky v. Cochran, 234 A.D.2d 542, 543 (2d Dep't 1996) (holding that
defendants had failed to present any evidence in admissible form sufficient to raise a triable issue of
5 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
fact with respect to plaintiff's comparative negligence).
17. An opponent of summary judgment seeking further discovery must set forth a
reason to believe additional discovery would reveal a relevant triable issue. See Bryan v. City of
New York, 206 A.D.2d 448, 449 (2d Dep't 1994) (holding that defendant's contention that there
was discovery pending at the time of the plaintiff s motion for partial summary judgment is
insufficient to defeat the motion. Allegations of mere hope that the discovery will reveal something
helpful...provide no basis for postponing the determination of plaintiff's [summary judgment]
motion."); Morales v. P.S. Elevator, Inc., 167 A.D.2d 520, 523 (2d Dep't 1990) (holding that a
party can only prove a motion for summary judgment is premature when they "set forth any reason
to believe that additional discovery would reveal a relevant triable issue of fact.").
18. The mere hope or belief that further discovery might reveal some bit of helpful
information is insufficient grounds to postpone a determination of summary judgment.SeeBerrios
v. Kobal, 262 A.D.2d 514, 514 (2d Dep't 1999) (holding that "mere expressions of hope,
conclusions, or unsubstantiated allegations were insufficient to defeat the cross motion for
summary judgment."); Frouws v. Campbell Foundry Company, 275 A.D.2d 761, 761 (2d Dep't
hope'
2000) (holding that the "the 'mere that evidence sufficient to defeat the motion may be
uncovered during the discovery process is not enough").
Defendants'
19. Any argument by counsel that more discovery is required before the
Court rules on this motion is insufficient, as a matter of law, to raise a triable issue of fact. The
contention that discovery is outstanding is inadequate as a matter of law to overcome the Plaintiff's
primafacie case of negligence on the part of the Defendants.
20. Finally, Plaintiff does not contest that discovery shall proceed on the issue of
damages, that the Defendants are entitled to conduct Plaintiff's deposition on the issue of damages
6 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
and that the Defendants have the right to conduct medical examinations, provided the Defendants
comply with the timelines set forth in any orders of this Court as well as all relevant provisions of
Defendants'
the CPLR. Plaintiff also acknowledges right to contest the severity of Plaintiff's
injures in accordance with Insurance Law §5102 and agrees to submit relevant discovery and such
other items as the Defendants may be entitled to pursuant to the aforementioned statutes, orders
and rules.
C. Plaintiff has Established a Prima Facie Case
21. Plaintiff respectfully submits that he is entitled to summary judgment on the issue
of liability as a matter of law. Summary judgment is designed to expedite all civil cases by
eliminating from the trial calendar claims which can properly be resolved as a matter of law. See
Andre v. Pomeroy, at 362.
22. PlaintiffROBIN ELLIS's Affidavit, annexed hereto as Exhibit 4 gives his rendition
of the collision in admissible form as detailed above.
23. It is respectfully submitted, that the Plaintiff's Affidavit eliminates any factual
dispute as to how this incident occurred. As such, there is clearly no evidence that can be submitted
to this Court that could point to any negligence of the Plaintiff, nor any triable issues of fact that
would warrant denial ofthe motion. Under the circumstances, summary judgment must be granted
as there are no genuine issues of material fact that require a trial on the issue of Defendants liability
for causing the subject collision.
D. Defendant MICHAEL E. OSWALD is Negligent Because He Violated The Vehicle
and Traffic Law
24. Defendant-Driver MICHAEL E. OSWALD violated numerous sections of the
vehicle and traffic law when he made a reckless right turn and struck Plaintiff's stopped vehicle.
7 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
25. Specifically, Vehicle and Traffic Law §1160[a], entitled "Required Position and
Intersections"
Method of Turning at states, in pertinent part, that: "Both the approach for a right
turn and a right turn shall be made as close as practicable to the right hand curb or edge of the
slope."
roadway or, where travel on the shoulder or slope has been authorized, from the shoulder or
26. Further, Vehicle and Traffic Law §1180[a] states that: "No person shall drive a
vehicle at a speed greater than is reasonable and prudent under the conditions and having regard
existing."
to the actual and potential hazards then
27. Vehicle and Traffic Law §1212, entitled "Reckless driving", states, in pertinent
part: "Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other
vehicle propelled by any power other than muscular power or any appliance or accessory thereof
in a manner which unreasonably interferes with the free and proper use of the public highway, or
prohibited."
unreasonably endangers users of the public highway. Reckless driving is
28. Defendant-driver MICHAEL E. OSWALD violated, at minimum, each and every
one of the aforementioned statutes, thereby entitling Plaintiff to summary judgment as a matter of
law.
29. Additionally, the obligation to see what there is to be seen and drive accordingly is
part and parcel of the Vehicle and Traffic Law, and the violation of a statute is prima facie
negligence. See Zabusky v. Cochran, at 543 ; DeProssino v. Noorzad, 225 A.D.2d 581, 582 (2d
Dep't 1996) (holding that prima facie case warranting granting summary judgment can be
established if a law is broken); Jermin v. APA Truck Leasing Co., 237 A.D.2d 255, 255 (2d Dep't
1997) (holding that summary judgment was warranted because the defendant had violated a statute
and had failed to raise a triable issue of fact as to comparative negligence of plaintiff).
30. Violation of statute and is negligence per se and merits a grant of summary
8 of 13
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023
judgment. See Gadon v. Oliva, 294 A.D.2d 397, 398 (2d Dep't
Preview
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------·-------------------------------------------------------X ROBIN ELLIS, Index No.: 607676/2023 Plaintiff, ATTORNEY . AFFIRMATION IN SUPPORT OF MOTION THE VILLAGE OF ROCKVILLE CENTRE FOR SUMMARY and MICHAEL E. OSWALD, JUDGMENT Defendants. ______________________________________________________________________Ç KATHERINE A. SAWICKI, ESQ. an attorney duly admitted to practice law before the Courts of the State of New York, aware of the penalties for perjury, duly affirms the following: 1. I am an associate at THE LAW OFFICE OF COHEN & JAFFE, LLP, attorneys of record for the Plaintiff herein, ROBIN ELLIS. Based upon a review of the file maintained by my office, I am fully familiar with all the facts, circumstances, pleadings and proceedings heretofore and herein. 2. I respectfully submit this affirmation in support of the Plaintiff's instant application for an Order: 1) granting summary judgment on the issue of liability pursuant to C.P.L.R. §3212 Defendants' for Plaintiff; 2) Striking Second Affirmative Defense of Failure to Use Seatbelts; 3) Defendants' Striking Third Affirmative Defense of Culpable Conduct/Contributory Negligence of Plaintiff; and for such other and further relief as this Court may deem just and proper. 3. The underlying action is brought to recover money damages for serious personal injuries sustained by the Plaintiff ROBIN ELLIS, (hereinafter "Plaintiff"), as a result of a motor vehicle accident which occurred on April 29, 2022, at approximately 3:25 P.M. on Cedar Avenue, at or near its intersection with Hempstead Avenue, in the Village of Rockville Centre, County of Nassau and State of New York. 1 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 L PROCEDURAL BACKGROUND 4. This action was commenced by Plaintiff's e-filing of a Summons and Complaint dated May 12, 2023 a true and accurate copy of which is annexed hereto as Exhibit 1. Defendants' 5. Issue was duly joined by service of Answer dated June 23, 2023, a true and accurate copy of which is annexed hereto as Exhibit 2. 6. On September 1, 2023, Plaintiff served on the Defendants a Bill of Particulars, a true and accurate copy of which is annexed hereto as Exhibit 3. 7. To date, the Defendants have not taken the deposition of Plaintiff nor have the Defendants moved to compel it. 8. In further support of this motion, a sworn Affidavit of ROBIN ELLIS dated October 26, 2023, containing a recitation of the facts of this accident in admissible form, is annexed hereto as Exhibit 4. 9. In his Affidavit, Plaintiff sets forth he was stopped at a stop sign on westbound Cedar Avenue at its intersection with Hempstead Avenue, when Defendant-Driver MICHAEL E. OSWALD, who was attempting to turn right from northbound Hempstead Avenue to proceed eastbound down Cedar Avenue, made a wide right turn and struck Plaintiff's stopped vehicle. IL FACTUAL BACKGROUND 10. Annexed hereto and marked as Exhibit 4 is an affidavit of ROBIN ELLIS dated October 26, 2023. 11. Specifically, in his Affidavit, Plaintiff ROBIN ELLIS sets forth, in admissible form, that: a) On April 29, 2022, at approximately 3:25 p.m., on a clear and dry day, Plaintiff ROBIN ELLIS was the driver of a 2013 BMW motor vehicle bearing New Jersey State license plate number 361559T on Cedar Avenue 2 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 at its intersection with Hempstead Avenue, in the County of Nassau, State of New York. See Ex. 4 at 73. b) Prior to the impact, Plaintiff ROBIN ELLIS's vehicle was stopped for a stop sign while heading westbound on Cedar Avenue, at its intersection with Hempstead Avenue. See Ex. 4 at 74. c) Cedar Avenue at its intersection with Hempstead Avenue is a straight and level two-way roadway, allowing vehicles to travel in eastbound and westbound directions, with one lane for moving traffic in each direction. Westbound traffic on Cedar Avenue is controlled by a stop sign at this intersection. See Ex. 4 at 75. d) Hempstead Avenue at its intersection with Cedar Avenue is a straight and level two-way roadway, allowing vehicles to travel in northbound and southbound directions, with one lane for moving traffic in each direction, separated by solid double yellow lines. Traffic on Hempstead Avenue is not controlled by a stop sign, nor any other traffic control device at this intersection. See Ex. 4 at 76. e) A true and accurate photograph of the roadway where the collision occurred is attached with this affidavit. The photograph depicts the vista of a vehicle travelling westbound on Cedar Avenue, at its intersection with Hempstead Avenue. See Ex. 4 at 77. f) Plaintiff ROBIN ELLIS's car was the first car that was stopped at the stop sign on westbound Cedar Avenue, at its intersection with Hempstead Turnpike. Plaintiff ROBIN ELLIS had his right turn signal illuminated, and intended on making a right turn onto Hempstead Avenue. See Ex. 4 at 78. g) Plaintiff ROBIN ELLIS had been stopped for approximately thirty seconds when a 2016 Chevrolet Bus motor vehicle bearing New York State license plate number AY8768 was traveling northbound on Hempstead Avenue, and suddenly and without warning, made a wide right turn onto Cedar Avenue and struck the driver's front side of Plaintiff ROBIN ELLIS's vehicle. See Ex. 4 at 79. h) Plaintiff ROBIN ELLIS later came to learn that the 2016 Chevrolet bus motor vehicle that struck his vehicle was owned by defendant, THE VILLAGE OF ROCKVILLE CENTRE, and operated by defendant, MICHAEL E. OSWALD, of whom are defendants in this action. See Ex. 4 at F10. i) At the time of the accident, there was no construction, debris or other obstructions on that section of the roadway in either direction. See Ex. 4 at 711. j) At the time of the impact, Plaintiff ROBIN ELLIS's vehicle was fully stopped. His foot was on the brake, and his brake and brake lights were operational. See Ex. 4 at 712. 3 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 k) Plaintiff ROBIN ELLIS did nothing to cause or contribute to the happening of this accident. See Ex. 4 at 713. 1) The Defendant gave no warning before he struck Plaintiff ROBlN ELLIS's vehicle. Before the impact, there were no sounds of any horns or screeching brakes coming from the 2016 Chevrolet bus motor vehicle. See Ex. 4 at 714 m) At all times prior to and during the impact, Plaintiff ROBIN ELLIS was wearing his seatbelt. See Ex. 4 at 715. n) Plaintiff ROBIN ELLIS's seatbelt was fully functional and extended over his lap and shoulders, and Plaintiff ROBIN ELLIS needed to unclip his seatbelt to exit his vehicle after the accident. See Ex. 4 at 716. 12. As a result of this impact, Plaintiff ROBIN ELLIS, was caused to sustain serious, severe and permanent injuries, those of which he continues to suffer from to date. IIL ARGUMENT A. The Summary Judgment Standard 13. Plaintiff is entitled to summary judgment on the issue of liability as a matter of law. A Court will not "strain to find issues, however nebulous, which may preserve an unfounded claim negotiations," for litigation or Donlon v. Pugliese, 27 A.D.2d 786, 787 (3d Dep't 1967), and will not accept from the Defendant "mere conclusions, expressions of hope or unsubstantiated assertions" allegations or in opposition to a motion for summary judgment. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). 14. The Court of Appeals has recognized that summary judgment is appropriate when there is no viable question as to liability. See Andre v. Pomeroy, 35 N.Y.2d 361, 362 (1974). In Andre, the Court cogently stated: "Since it [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 triable issues...But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and, thus, deny to other litigants the right to have their claims adjudicated." properly 4 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 The Court further stated that summary judgment is appropriate when: "there is no conflict at all in the evidence, that defendants conduct fell far below any permissible standard of due care, and plaintiffs involved." conduct. . . was not really Id. 15. Such is the case herein where there is no evidence of comparative negligence on Defendants' the part of the Plaintiff, but rather, only that he was merely the victim of negligence. B. The Motion Is Not Premature 16. This motion should be granted despite the fact that it is made before depositions have been conducted. It is well-settled law that a party opposing summary judgment must present evidence in admissible form sufficient to raise a triable issue of fact. The Appellate Courts have consistently upheld the propriety of pre-deposition summary judgment motions. See Weinberg v. JAF Color Labs, Inc., 57 A.D.3d 769, 769 (2d Dep't 2008) (holding that "defendants failed to offer an evidentiary basis demonstrating that further discovery may lead to relevant evidence, as opposed uncover" to mere hope and speculation as to what additional discovery would and therefore summary judgment was properly granted to plaintiff); Torres v. American Bldg. Maintenance Co. of N Y, 51 A.D.3d 905, 906 (2d Dep't 2008) (holding that plaintiff had properly established threshold for plaintiffs' summary judgment and that defendants had not offered any evidence of comparative negligence and further that failure "to offer an evidentiary basis demonstrating that further discovery may lead to relevant evidence, as opposed to mere hope and speculation as to what additional uncover" discovery would was insufficient to deny summary judgment); Belitsis v. Airborne Express Freight Corp., 306 A.D.2d 507, 508 (2d Dep't 2003) (holding that "Since the facts concerning the accident are undisputed, the Supreme Court properly granted the plaintiffs motion before depositions were conducted"); Zabusky v. Cochran, 234 A.D.2d 542, 543 (2d Dep't 1996) (holding that defendants had failed to present any evidence in admissible form sufficient to raise a triable issue of 5 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 fact with respect to plaintiff's comparative negligence). 17. An opponent of summary judgment seeking further discovery must set forth a reason to believe additional discovery would reveal a relevant triable issue. See Bryan v. City of New York, 206 A.D.2d 448, 449 (2d Dep't 1994) (holding that defendant's contention that there was discovery pending at the time of the plaintiff s motion for partial summary judgment is insufficient to defeat the motion. Allegations of mere hope that the discovery will reveal something helpful...provide no basis for postponing the determination of plaintiff's [summary judgment] motion."); Morales v. P.S. Elevator, Inc., 167 A.D.2d 520, 523 (2d Dep't 1990) (holding that a party can only prove a motion for summary judgment is premature when they "set forth any reason to believe that additional discovery would reveal a relevant triable issue of fact."). 18. The mere hope or belief that further discovery might reveal some bit of helpful information is insufficient grounds to postpone a determination of summary judgment.SeeBerrios v. Kobal, 262 A.D.2d 514, 514 (2d Dep't 1999) (holding that "mere expressions of hope, conclusions, or unsubstantiated allegations were insufficient to defeat the cross motion for summary judgment."); Frouws v. Campbell Foundry Company, 275 A.D.2d 761, 761 (2d Dep't hope' 2000) (holding that the "the 'mere that evidence sufficient to defeat the motion may be uncovered during the discovery process is not enough"). Defendants' 19. Any argument by counsel that more discovery is required before the Court rules on this motion is insufficient, as a matter of law, to raise a triable issue of fact. The contention that discovery is outstanding is inadequate as a matter of law to overcome the Plaintiff's primafacie case of negligence on the part of the Defendants. 20. Finally, Plaintiff does not contest that discovery shall proceed on the issue of damages, that the Defendants are entitled to conduct Plaintiff's deposition on the issue of damages 6 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 and that the Defendants have the right to conduct medical examinations, provided the Defendants comply with the timelines set forth in any orders of this Court as well as all relevant provisions of Defendants' the CPLR. Plaintiff also acknowledges right to contest the severity of Plaintiff's injures in accordance with Insurance Law §5102 and agrees to submit relevant discovery and such other items as the Defendants may be entitled to pursuant to the aforementioned statutes, orders and rules. C. Plaintiff has Established a Prima Facie Case 21. Plaintiff respectfully submits that he is entitled to summary judgment on the issue of liability as a matter of law. Summary judgment is designed to expedite all civil cases by eliminating from the trial calendar claims which can properly be resolved as a matter of law. See Andre v. Pomeroy, at 362. 22. PlaintiffROBIN ELLIS's Affidavit, annexed hereto as Exhibit 4 gives his rendition of the collision in admissible form as detailed above. 23. It is respectfully submitted, that the Plaintiff's Affidavit eliminates any factual dispute as to how this incident occurred. As such, there is clearly no evidence that can be submitted to this Court that could point to any negligence of the Plaintiff, nor any triable issues of fact that would warrant denial ofthe motion. Under the circumstances, summary judgment must be granted as there are no genuine issues of material fact that require a trial on the issue of Defendants liability for causing the subject collision. D. Defendant MICHAEL E. OSWALD is Negligent Because He Violated The Vehicle and Traffic Law 24. Defendant-Driver MICHAEL E. OSWALD violated numerous sections of the vehicle and traffic law when he made a reckless right turn and struck Plaintiff's stopped vehicle. 7 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 25. Specifically, Vehicle and Traffic Law §1160[a], entitled "Required Position and Intersections" Method of Turning at states, in pertinent part, that: "Both the approach for a right turn and a right turn shall be made as close as practicable to the right hand curb or edge of the slope." roadway or, where travel on the shoulder or slope has been authorized, from the shoulder or 26. Further, Vehicle and Traffic Law §1180[a] states that: "No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard existing." to the actual and potential hazards then 27. Vehicle and Traffic Law §1212, entitled "Reckless driving", states, in pertinent part: "Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or prohibited." unreasonably endangers users of the public highway. Reckless driving is 28. Defendant-driver MICHAEL E. OSWALD violated, at minimum, each and every one of the aforementioned statutes, thereby entitling Plaintiff to summary judgment as a matter of law. 29. Additionally, the obligation to see what there is to be seen and drive accordingly is part and parcel of the Vehicle and Traffic Law, and the violation of a statute is prima facie negligence. See Zabusky v. Cochran, at 543 ; DeProssino v. Noorzad, 225 A.D.2d 581, 582 (2d Dep't 1996) (holding that prima facie case warranting granting summary judgment can be established if a law is broken); Jermin v. APA Truck Leasing Co., 237 A.D.2d 255, 255 (2d Dep't 1997) (holding that summary judgment was warranted because the defendant had violated a statute and had failed to raise a triable issue of fact as to comparative negligence of plaintiff). 30. Violation of statute and is negligence per se and merits a grant of summary 8 of 13 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 11/09/2023 judgment. See Gadon v. Oliva, 294 A.D.2d 397, 398 (2d Dep't