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FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
DORIS CESPEDES,
ATTORNEY AFFIRMATION
IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
Plaintiff,
-against- Index No.: 607750/2023
GUSTAVO LEMUS SAYES,
Defendant.
CAITLIN McNAUGHTON, 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, counsel for
the Plaintiff herein, DORIS CESPEDES.
2. Based upon a review of the contents of the file maintained by my office, our
investigation and conversations with the Plaintiff, I am fully familiar with all the facts,
circumstances, pleadings and proceedings heretofore had herein.
3. I respectfully submit this affirmation in support of the Plaintiff's instant application
for an Order: 1) granting Plaintiff summary judgment against the Defendant GUSTAVO LEMUS
SAYES, on the issue of liability pursuant to C.P.L.R. §3212; 2) Striking the First Affirmative
Defense of Emergency Doctrine; 3) Striking the Second Affirmative Defense of Culpable
Conduct/Contributory Negligence; 4) Striking the Third Affirmative Defense of Culpable Conduct
of Third Parties; 5) Striking the Seventh Affirmative Defense of Statute of Limitations; 6) Striking
the Eighth Affirmative Defense of Failure to Wear Seatbelts and for such other and further relief
as this Court may deem just and proper.
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4. The underlying action is brought to recover money damages for serious personal
injuries sustained by the Plaintiff DORIS CESPEDES, as a result of an automobile accident, which
occurred on January 25, 2022 at approximately 11:45 a.m. on eastbound South Franklin Avenue
at or near its intersection with Peninsula Boulevard, Nassau County, State of New York.
I. PROCEDURAL BACKGROUND
5. This action was commenced by Plaintiff's e-filing a Summons and Complaint dated
A.1
May 9, 2023, a true and accurate copy of which is annexed hereto as Exhibit
6. Issue was duly joined by service of Defendant's Answer dated June 14, 2023, a true
and accurate copy of which is annexed hereto as Exhibit B.
7. Plaintiff filed an Amended Complaint dated September 26, 2023 and Defendant
filed an Answer to the Amended Complaint dated October 27, 2023. True and accurate copies of
both documents are annexed hereto as Exhibit C.
8. To date, the Defendant has not taken the deposition of the Plaintiff nor has
Defendant moved to compel it.
9. A Preliminary Conference Order dated September 13, 2023 is annexed hereto as
Exhibit D.
10. In further support of this motion, a sworn affidavit of Affidavit of Plaintiff DORIS
CESPEDES dated July 31, 2023 (hereinafter "Plaintiff"), containing a recitation of the facts of this
accident in admissible form, as Exhibit E.
11. In Plaintiff DORIS CESPEDES's Affidavit, she sets forth that she was lawfully
operating her vehicle, with a green light in her direction of travel, and was about ten feet before
1 Hereinafter all filed
exhibits will be referred to as "Exhibit __", annexed hereto and
contemporaneously herewith.
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the marked crosswalk on South Franklin Avenue when suddenly and without warning, her vehicle
was sideswiped by the Defendant's vehicle, causing the collision.
IL FACTUAL BACKGROUND
12. The within action is one for serious injuries that arose from a motor vehicle accident
which occurred on January 25, 2022 at approximately 11:45 a.m. on eastbound South Franklin
Avenue at or near its intersection with Peninsula Boulevard, Nassau County, State of New York.
13. Specifically, in her affidavit, annexed hereto as Exhibit E, Plaintiff DORIS
CESPEDES sets forth, in admissible form, that:
a) On January 25, 2022 at approximately 11:45 a.m., Plaintiff DORIS CESPEDES was the
driver of a 2015 Nissan motor vehicle bearing New York State license plate number
GVH9864 on eastbound South Franklin Street at or near its intersection with Peninsula
Boulevard, in the County of Nassau and State of New York. See Ex. E F3·
b) South Franklin Street at or near its intersection with Peninsula Boulevard is a two-way
roadway with two lanes for moving vehicles in both an eastbound and westbound direction.
The eastbound and westbound lanes for moving traffic are separated by a solid double
yellow line. In the westbound direction, there is also a turning lane for left turns down
southbound West Peninsula Boulevard marked by a left turn arrow on the pavement. See
Ex. E 74.
c) Peninsula Boulevard at or near its intersection with South Franklin Street is a two-way
roadway with two lanes for vehicle traffic in a both a northbound and southbound direction.
The northbound and southbound lanes for moving traffic are separated by a grassy median.
See Ex. E 75.
d) The intersection is controlled in all directions by a traffic light. See Ex. E 76.
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e) A photograph that fairly and accurately depicts the intersection where the accident occurred
are annexed hereto as Exhibit A. See Ex. E 77.
f) That intersection is flat and level, the weather was clear and dry, and there were no
obstructions in the area that would prevent drivers from being able to observe the entire
intersection before attempting to traverse it. See Ex. E 78.
g) Prior to the impact, Plaintiff DORIS CESPEDES was driving eastbound in the right lane
on South Franklin Street across its intersection with Peninsula Boulevard. See Ex. E 79.
h) The light in Plaintiff DORIS CESPEDES's direction of travel was green, Plaintiff DORIS
CESPEDES was operating her vehicle at a speed of approximately twenty miles per hour.
See Ex. E 710.
i) Plaintiff DORIS CESPEDES had crossed the entire intersection and the front ofher vehicle
was about ten feet before the marked crosswalk on South Franklin Avenue when suddenly
and without warning, Plaintiff DORIS CESPEDES's vehicle was sideswiped in the rear by
a 2013 Ford motor vehicle bearing New York State license plate KSM7824 on Plaintiff
DORIS CESPEDES's driver's side rear quarter panel. See Ex. E 711.
j) The 2013 Ford motor vehicle had departed its lane of travel (the left lane) and entered
Plaintiff DORIS CESPEDES's lane of travel (the right lane) and struck Plaintiff DORIS
CESPEDES's vehicle in the rear, causing the accident. See Ex. E F12.
k) Plaintiff DORIS CESPEDES had less than one second to react, and that was not enough
time to avoid the collision and the Defendant's vehicle struck the rear driver's side of
Plaintiff DORIS CESPEDES's vehicle. See Ex. E 713.
1) Immediately after the impact, Plaintiff DORIS CESPEDES began to pull her vehicle over
to the side of South Franklin Avenue. Plaintiff DORIS CESPEDES had not yet brought her
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vehicle to a stop when Plaintiff DORIS CESPEDES realized that the 2013 Ford was not
stopping and was leaving the scene of the accident. See Ex. E F14
m) Instead of pulling over to exchange information or see if Plaintiff DORIS CESPEDES was
hurt, the 2013 Ford motor vehicle fled the scene down eastbound South Franklin Street.
See Ex. E F15.
n) Plaintiff DORIS CESPEDES moved her vehicle back into travelling lanes and carefully
pursued the 2013 Ford to a red light at the intersection of South Franklin and East Graham
Avenue. See Ex. E F16.
o) At the light, the 2013 Ford stopped, and Plaintiff DORIS CESPEDES exited her vehicle
and told the driver to pull over to await police as he had struck Plaintiff DORIS
CESPEDES's vehicle. See Ex. E F17.
p) The 2013 Ford did then pull over, and Defendant and Plaintiff DORIS CESPEDES waited
at the intersection of East Graham Avenue and South Franklin Street for the police, who
responded and filled out their report as if the accident had happened at that intersection
instead of the correct intersection of South Franklin and Peninsula Boulevard. See Ex. E
F18.
q) At all times prior to and during the impact, Plaintiff DORIS CESPEDES was wearing her
seatbelt. See Ex. E F19.
r) Plaintiff DORIS CESPEDES's seatbelt was fully functional, extended over her lap and
shoulders, and Plaintiff DORIS CESPEDES needed to unclip it to exit the vehicle after the
impact. See Ex. E 720.
s) Plaintiff DORIS CESPEDES did nothing to cause or contribute to the happening of this
accident as Plaintiff DORIS CESPEDES was lawfully proceeding straight in the
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intersection with the light in her favor when Defendant negligently entered Plaintiff DORIS
CESPEDES's lane of travel and struck Plaintiff DORIS CESPEDES's vehicle in the
driver's side rear quarter panel, causing the accident. See Ex. E F21.
t) Plaintiff DORIS CESPEDES later came to find out that the 2013 Ford motor vehicle was
owned and operated by GUSTAVO LEMUS SAYES, the Defendant in this action. See Ex.
E 73.
14. As a result of the aforesaid impact, Plaintiff DORIS CESPEDES sustained serious
and severe personal injuries.
W. ARGUMENT
A. THE SUMMARY JUDGMENT STANDARD
15. 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 Defendants "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).
16. 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
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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 plaintiff s
involved."
conduct. . . was not really Id.
17. Such is the case herein where there is no evidence of comparative negligence on
the part of the Plaintiff, but rather, only that she was the victim of an accident caused by the
Defendant.
18. Plaintiff respectfully submits that she 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. Plaintiff DORIS CESPEDES's Affidavit annexed hereto as Exhibit E
conclusively demonstrates how the accident occurred.
B. THE MOTION IS NOT PREMATURE
19. 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).
20. The Appellate Second reaffirmed the notion that pre-
Division, Department,
deposition summary judgment motions are not premature in motor vehicle cases. In Hill v. Ackall,
71 A.D.3d 829, 830 (2d Dep't 2010), the Appellate Division, Second Department, reversed an
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Order of the lower court which denied plaintiff's motion for summary judgment. Defendant
opposed the motion on the grounds that the motion was premature. However, the Court held that
premature."
"[c]ontrary to the contention of [defendant], the motion was not Id. At 830. See also
Staton v. Ric, 69 A.D.3d 606, 607 (2d Dept. 2010) (holding that "If the operator of the moving
vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and
liability"
owner of the stationary vehicle are entitled to summary judgment on the issue of and that
the motion for summary judgment on liability was not premature)".
21. 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 plaintiffs 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.").
22. Any argument by Defendant's 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
prima facie case of negligence on the part of the Defendant.
23. It is well-settled law that mere assertions of hope that further discovery will reveal
something helpful to a party's case provides no basis for postponing the determination of a
plaintiff's summary judgment motion. See Manney v. GE Medical Systems, 7 A.D.3d 763, 764 (2d
Dep't 2004) (holding that a party's contention that [s/he] needed to conduct further discovery was
insufficient to defeat the [summary judgment] motion); Mazzaferro v. Barterama Corp., 218
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A.D.2d 643, 644 (2d Dep't 1995) (holding that because "there was only hope and speculation as
to what additional discovery would uncover in the present situation, the court properly granted the
motion for summary judgment").
24. Finally, Plaintiff does not contest that discovery shall proceed on the issue of
damages, that the Defendant is entitled to conduct Plaintiff's deposition on the issue of damages
and that the Defendant has the right to conduct medical examinations, provided the Defendant
complies with the timelines set forth in any orders of this Court as well as all relevant provisions
of the CPLR. Plaintiff also acknowledges Defendant's 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 Defendant may be entitled to pursuant to the aforementioned statutes, orders and
rules.
C. DEFENDANT GUSTAVO LEMUS SAYESIS NEGLIGENT AS A
MATTER OF LAW PURSUANT TO VEHICLE AND TRAFFIC LAW §§1128 and
1129(A)
25. Defendant GUSTAVO LEMUS SAYES is negligent as a matter of law as it is clear
that he departed his lane of travel, negligently striking Plaintiff's vehicle in the rear when it was
lawfully proceeding through the intersection, fully within her lane of travel.
26. As can be seen from the affidavit of DORIS CESPEDES, Plaintiff is entitled to
judgment as a matter of law by establishing that the Defendant-driver's conduct was the sole
proximate cause of the accident by violating New York Vehicle and Traffic Law Section §1128
when Defendant GUSTAVO LEMUS SAYES failed to maintain his vehicle in its lane of travel
and made an unsafe lane change directly into Plaintiff's vehicle, leaving Plaintiff no way to avoid
the collision. Section 1128 of the VTL, in pertinent part provides:
"Whenever any roadway has been divided into
two or more clearly marked lanes for traffic the
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following rules in addition to all others
consistent herewith shall apply:
(a) A vehicle shall be driven as nearly as
practicable entirely within a single lane and
shall not be moved from such lane until the
driver has first ascertained that such movement
safely."
can be made
27. Plaintiff undeniably had the right of way and was entitled to anticipate that
Defendant-driver would comply with his obligation to yield accordingly and his common law duty
to see that which was to be seen through the ordinary use of their senses; namely, the presence of
Plaintiff's vehicle in the adjacent lane of travel. See Terrel v. Kissel, 116 A.D.2d 637, 639 (2d
Dep't 1986) (holding that drivers have a general duty to operate their vehicles in a responsible
manner and that drivers are required to obey the law); Pryor v. Reichert, 265 A.D.2d 470 (2d Dep't
1999) (holding that a violation of the law is sufficient basis to grant summary judgment on
Preview
FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU DORIS CESPEDES, ATTORNEY AFFIRMATION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiff, -against- Index No.: 607750/2023 GUSTAVO LEMUS SAYES, Defendant. CAITLIN McNAUGHTON, 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, counsel for the Plaintiff herein, DORIS CESPEDES. 2. Based upon a review of the contents of the file maintained by my office, our investigation and conversations with the Plaintiff, I am fully familiar with all the facts, circumstances, pleadings and proceedings heretofore had herein. 3. I respectfully submit this affirmation in support of the Plaintiff's instant application for an Order: 1) granting Plaintiff summary judgment against the Defendant GUSTAVO LEMUS SAYES, on the issue of liability pursuant to C.P.L.R. §3212; 2) Striking the First Affirmative Defense of Emergency Doctrine; 3) Striking the Second Affirmative Defense of Culpable Conduct/Contributory Negligence; 4) Striking the Third Affirmative Defense of Culpable Conduct of Third Parties; 5) Striking the Seventh Affirmative Defense of Statute of Limitations; 6) Striking the Eighth Affirmative Defense of Failure to Wear Seatbelts and for such other and further relief as this Court may deem just and proper. 1 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 4. The underlying action is brought to recover money damages for serious personal injuries sustained by the Plaintiff DORIS CESPEDES, as a result of an automobile accident, which occurred on January 25, 2022 at approximately 11:45 a.m. on eastbound South Franklin Avenue at or near its intersection with Peninsula Boulevard, Nassau County, State of New York. I. PROCEDURAL BACKGROUND 5. This action was commenced by Plaintiff's e-filing a Summons and Complaint dated A.1 May 9, 2023, a true and accurate copy of which is annexed hereto as Exhibit 6. Issue was duly joined by service of Defendant's Answer dated June 14, 2023, a true and accurate copy of which is annexed hereto as Exhibit B. 7. Plaintiff filed an Amended Complaint dated September 26, 2023 and Defendant filed an Answer to the Amended Complaint dated October 27, 2023. True and accurate copies of both documents are annexed hereto as Exhibit C. 8. To date, the Defendant has not taken the deposition of the Plaintiff nor has Defendant moved to compel it. 9. A Preliminary Conference Order dated September 13, 2023 is annexed hereto as Exhibit D. 10. In further support of this motion, a sworn affidavit of Affidavit of Plaintiff DORIS CESPEDES dated July 31, 2023 (hereinafter "Plaintiff"), containing a recitation of the facts of this accident in admissible form, as Exhibit E. 11. In Plaintiff DORIS CESPEDES's Affidavit, she sets forth that she was lawfully operating her vehicle, with a green light in her direction of travel, and was about ten feet before 1 Hereinafter all filed exhibits will be referred to as "Exhibit __", annexed hereto and contemporaneously herewith. 2 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 the marked crosswalk on South Franklin Avenue when suddenly and without warning, her vehicle was sideswiped by the Defendant's vehicle, causing the collision. IL FACTUAL BACKGROUND 12. The within action is one for serious injuries that arose from a motor vehicle accident which occurred on January 25, 2022 at approximately 11:45 a.m. on eastbound South Franklin Avenue at or near its intersection with Peninsula Boulevard, Nassau County, State of New York. 13. Specifically, in her affidavit, annexed hereto as Exhibit E, Plaintiff DORIS CESPEDES sets forth, in admissible form, that: a) On January 25, 2022 at approximately 11:45 a.m., Plaintiff DORIS CESPEDES was the driver of a 2015 Nissan motor vehicle bearing New York State license plate number GVH9864 on eastbound South Franklin Street at or near its intersection with Peninsula Boulevard, in the County of Nassau and State of New York. See Ex. E F3· b) South Franklin Street at or near its intersection with Peninsula Boulevard is a two-way roadway with two lanes for moving vehicles in both an eastbound and westbound direction. The eastbound and westbound lanes for moving traffic are separated by a solid double yellow line. In the westbound direction, there is also a turning lane for left turns down southbound West Peninsula Boulevard marked by a left turn arrow on the pavement. See Ex. E 74. c) Peninsula Boulevard at or near its intersection with South Franklin Street is a two-way roadway with two lanes for vehicle traffic in a both a northbound and southbound direction. The northbound and southbound lanes for moving traffic are separated by a grassy median. See Ex. E 75. d) The intersection is controlled in all directions by a traffic light. See Ex. E 76. 3 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 e) A photograph that fairly and accurately depicts the intersection where the accident occurred are annexed hereto as Exhibit A. See Ex. E 77. f) That intersection is flat and level, the weather was clear and dry, and there were no obstructions in the area that would prevent drivers from being able to observe the entire intersection before attempting to traverse it. See Ex. E 78. g) Prior to the impact, Plaintiff DORIS CESPEDES was driving eastbound in the right lane on South Franklin Street across its intersection with Peninsula Boulevard. See Ex. E 79. h) The light in Plaintiff DORIS CESPEDES's direction of travel was green, Plaintiff DORIS CESPEDES was operating her vehicle at a speed of approximately twenty miles per hour. See Ex. E 710. i) Plaintiff DORIS CESPEDES had crossed the entire intersection and the front ofher vehicle was about ten feet before the marked crosswalk on South Franklin Avenue when suddenly and without warning, Plaintiff DORIS CESPEDES's vehicle was sideswiped in the rear by a 2013 Ford motor vehicle bearing New York State license plate KSM7824 on Plaintiff DORIS CESPEDES's driver's side rear quarter panel. See Ex. E 711. j) The 2013 Ford motor vehicle had departed its lane of travel (the left lane) and entered Plaintiff DORIS CESPEDES's lane of travel (the right lane) and struck Plaintiff DORIS CESPEDES's vehicle in the rear, causing the accident. See Ex. E F12. k) Plaintiff DORIS CESPEDES had less than one second to react, and that was not enough time to avoid the collision and the Defendant's vehicle struck the rear driver's side of Plaintiff DORIS CESPEDES's vehicle. See Ex. E 713. 1) Immediately after the impact, Plaintiff DORIS CESPEDES began to pull her vehicle over to the side of South Franklin Avenue. Plaintiff DORIS CESPEDES had not yet brought her 4 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 vehicle to a stop when Plaintiff DORIS CESPEDES realized that the 2013 Ford was not stopping and was leaving the scene of the accident. See Ex. E F14 m) Instead of pulling over to exchange information or see if Plaintiff DORIS CESPEDES was hurt, the 2013 Ford motor vehicle fled the scene down eastbound South Franklin Street. See Ex. E F15. n) Plaintiff DORIS CESPEDES moved her vehicle back into travelling lanes and carefully pursued the 2013 Ford to a red light at the intersection of South Franklin and East Graham Avenue. See Ex. E F16. o) At the light, the 2013 Ford stopped, and Plaintiff DORIS CESPEDES exited her vehicle and told the driver to pull over to await police as he had struck Plaintiff DORIS CESPEDES's vehicle. See Ex. E F17. p) The 2013 Ford did then pull over, and Defendant and Plaintiff DORIS CESPEDES waited at the intersection of East Graham Avenue and South Franklin Street for the police, who responded and filled out their report as if the accident had happened at that intersection instead of the correct intersection of South Franklin and Peninsula Boulevard. See Ex. E F18. q) At all times prior to and during the impact, Plaintiff DORIS CESPEDES was wearing her seatbelt. See Ex. E F19. r) Plaintiff DORIS CESPEDES's seatbelt was fully functional, extended over her lap and shoulders, and Plaintiff DORIS CESPEDES needed to unclip it to exit the vehicle after the impact. See Ex. E 720. s) Plaintiff DORIS CESPEDES did nothing to cause or contribute to the happening of this accident as Plaintiff DORIS CESPEDES was lawfully proceeding straight in the 5 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 intersection with the light in her favor when Defendant negligently entered Plaintiff DORIS CESPEDES's lane of travel and struck Plaintiff DORIS CESPEDES's vehicle in the driver's side rear quarter panel, causing the accident. See Ex. E F21. t) Plaintiff DORIS CESPEDES later came to find out that the 2013 Ford motor vehicle was owned and operated by GUSTAVO LEMUS SAYES, the Defendant in this action. See Ex. E 73. 14. As a result of the aforesaid impact, Plaintiff DORIS CESPEDES sustained serious and severe personal injuries. W. ARGUMENT A. THE SUMMARY JUDGMENT STANDARD 15. 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 Defendants "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). 16. 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 6 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 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 plaintiff s involved." conduct. . . was not really Id. 17. Such is the case herein where there is no evidence of comparative negligence on the part of the Plaintiff, but rather, only that she was the victim of an accident caused by the Defendant. 18. Plaintiff respectfully submits that she 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. Plaintiff DORIS CESPEDES's Affidavit annexed hereto as Exhibit E conclusively demonstrates how the accident occurred. B. THE MOTION IS NOT PREMATURE 19. 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). 20. The Appellate Second reaffirmed the notion that pre- Division, Department, deposition summary judgment motions are not premature in motor vehicle cases. In Hill v. Ackall, 71 A.D.3d 829, 830 (2d Dep't 2010), the Appellate Division, Second Department, reversed an 7 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 Order of the lower court which denied plaintiff's motion for summary judgment. Defendant opposed the motion on the grounds that the motion was premature. However, the Court held that premature." "[c]ontrary to the contention of [defendant], the motion was not Id. At 830. See also Staton v. Ric, 69 A.D.3d 606, 607 (2d Dept. 2010) (holding that "If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and liability" owner of the stationary vehicle are entitled to summary judgment on the issue of and that the motion for summary judgment on liability was not premature)". 21. 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 plaintiffs 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."). 22. Any argument by Defendant's 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 prima facie case of negligence on the part of the Defendant. 23. It is well-settled law that mere assertions of hope that further discovery will reveal something helpful to a party's case provides no basis for postponing the determination of a plaintiff's summary judgment motion. See Manney v. GE Medical Systems, 7 A.D.3d 763, 764 (2d Dep't 2004) (holding that a party's contention that [s/he] needed to conduct further discovery was insufficient to defeat the [summary judgment] motion); Mazzaferro v. Barterama Corp., 218 8 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 A.D.2d 643, 644 (2d Dep't 1995) (holding that because "there was only hope and speculation as to what additional discovery would uncover in the present situation, the court properly granted the motion for summary judgment"). 24. Finally, Plaintiff does not contest that discovery shall proceed on the issue of damages, that the Defendant is entitled to conduct Plaintiff's deposition on the issue of damages and that the Defendant has the right to conduct medical examinations, provided the Defendant complies with the timelines set forth in any orders of this Court as well as all relevant provisions of the CPLR. Plaintiff also acknowledges Defendant's 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 Defendant may be entitled to pursuant to the aforementioned statutes, orders and rules. C. DEFENDANT GUSTAVO LEMUS SAYESIS NEGLIGENT AS A MATTER OF LAW PURSUANT TO VEHICLE AND TRAFFIC LAW §§1128 and 1129(A) 25. Defendant GUSTAVO LEMUS SAYES is negligent as a matter of law as it is clear that he departed his lane of travel, negligently striking Plaintiff's vehicle in the rear when it was lawfully proceeding through the intersection, fully within her lane of travel. 26. As can be seen from the affidavit of DORIS CESPEDES, Plaintiff is entitled to judgment as a matter of law by establishing that the Defendant-driver's conduct was the sole proximate cause of the accident by violating New York Vehicle and Traffic Law Section §1128 when Defendant GUSTAVO LEMUS SAYES failed to maintain his vehicle in its lane of travel and made an unsafe lane change directly into Plaintiff's vehicle, leaving Plaintiff no way to avoid the collision. Section 1128 of the VTL, in pertinent part provides: "Whenever any roadway has been divided into two or more clearly marked lanes for traffic the 9 of 17 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 11/09/2023 following rules in addition to all others consistent herewith shall apply: (a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement safely." can be made 27. Plaintiff undeniably had the right of way and was entitled to anticipate that Defendant-driver would comply with his obligation to yield accordingly and his common law duty to see that which was to be seen through the ordinary use of their senses; namely, the presence of Plaintiff's vehicle in the adjacent lane of travel. See Terrel v. Kissel, 116 A.D.2d 637, 639 (2d Dep't 1986) (holding that drivers have a general duty to operate their vehicles in a responsible manner and that drivers are required to obey the law); Pryor v. Reichert, 265 A.D.2d 470 (2d Dep't 1999) (holding that a violation of the law is sufficient basis to grant summary judgment on