Legal Document: The City Of New York Police Department v. Yoselis Villanueva (Third-Party Plaintiff), Luz Del Alba Santos (Third-Party Defendant)

On May 17, 2023 a EXHIBIT(S) - G - Villanueva opposition to SJ was filed involving a dispute between The City Of New York Police Department, and Luz Del Alba Santos, Yoselis Villanueva, for Torts - Other (Transfer) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X INDEX NO.: 008813/22
THE CITY OF NEW YORK POLICE DEPARTMENT

Plaintiff,
AFFIRMATION
- against - IN OPPOSITION

YOSELIS VILLANUEVA,
FILE NO. 1063022-03
Defendants. CASE ID: 121208
------------------------------------------------------------------------------X
YOSELIS VILLANUEVA,

Third-Party Plaintiff,
- against -

LUZ DEL ALBA SANTOS,

Third-Party Defendants.
------------------------------------------------------------------------------X

MICHAEL LACHMAN, 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, attorneys for the

defendants YOSELIS VILLANUEVA, 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

third-party defendant LUZ DEL ALBA SANTOS’ Motion seeking an Order granting summary

judgment to third-party defendant LUZ DEL ALBA SANTOS on the issue of liability; and

further relief as this Court deem just and proper, and further relief as this Court deem just and

proper.
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

3. This action arises out of a motor vehicle accident that occurred on July 16, 2019,

in the County, City, and State of New York.

SUMMARY JUDGMENT IS INAPPROPRIATE WHERE
GENUINE ISSUES OF MATERIAL FACT EXIST

4. 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).

5. 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).

6. Furthermore, 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 plaintiff's moving affidavits fail to meet the stringent evidentiary burden placed

upon movant. Falk v. Goodman, 7 N.Y.2d 87, 91 (1959); Coley v. Michelin Tire Corporation,

99 A.D.2d 795, 472 N.Y.S.2d 125 (2nd Dep’t 1984) ("the 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, 489 N.Y.S.2d 492 (1st Dep’t 1981); Ahl v. Martin, 82 A.D.2d 938, 440 N.Y.S.2d

748 (3d Dep’t1981); Greenberg v. Manlon Realty, Inc., 43 A.D.2d 968, 352 N.Y.S.2d 494 (2nd

Dep’t 1974).

7. 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). Summary judgment should only

be invoked rarely, because very often there is a question of whether the defendant has exercised
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

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; Morales v. River, 14 A.D.2d 752.

8. 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.

9. 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 third-party defendant's moving affidavits fail to meet the

stringent evidentiary burden placed upon movant. Falk v. Goodman, 7 N.Y.2d 87, 91 (1959);

Coley v. Michelin Tire Corporation, 99 A.D.2d 795 (2nd Dep’t 1984) ("the 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. Manlon Realty, Inc., 43 A.D.2d 968 (2nd Dep’t 1974).

10. 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). 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; Morales v. River, 14 A.D.2d 752.

11. 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.
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

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.

12. “A motorist has a duty to operate his automobile with reasonable care having

regard to the actual and potential hazards existing from weather, road, traffic and other

conditions. Each motorist is under a duty to maintain a reasonably safe rate of speed; to have his

automobile under reasonable control; and to keep a proper lookout, under the circumstances then

and there existing, to see and be aware of what was in his view, to use reasonable care to avoid

an accident.” PJI 2:77

13. Per the certified police accident report, annexed in movant’s papers as EXHIBIT

E, and defendant YOSELIS VILLANUEVA’s MV-104, annexed hereto as EXHIBIT A,

plaintiff’s vehicle was clearly following too closely to not keeping a safe distance between his

vehicle and the defendant YOSELIS VILLANUEVA’s vehicle. When defendant’s vehicle

stopped, plaintiff’s vehicle rear-ended defendant’s vehicle. Per the defendant’s MV-104, as well

as third-party plaintiff’s affidavit, annexed in movant’s papers as EXHIBIT F, when plaintiff’

rear-ended defendant’s vehicle, it caused his vehicle to make contact with third-party defendant’s

vehicle. The police report offers a conflicting statement, where third-party defendant stopped

abruptly due to a non-party vehicle swerving into her lane, and which point third-party defendant

was rear-ended by defendant’s vehicle, which in turn was rear-ended by plaintiff’s vehicle.

Clearly there is a question of fact as to how the accident occurred. The only thing that is not in

question is that plaintiff’s rear-ended defendant’s vehicle.

14. Clearly, there is a question of fact within the instant case, which is enough to

render summary judgment on liability improper. Moreover, it is the province of a jury to evaluate
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

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 defendant’s testimony,

and to hear the testimony of each witness, and then determine where the fault lies. Accordingly,

summary judgment is improper, and this Court should deny third-party defendant’s motion for

summary judgment. Alternatively, if somehow summary judgment on liability would be granted,

as the only undisputed fact was that plaintiff rear-ended defendant’s vehicle, summary judgment

should be determined against plaintiff as to defendants as well as third-party defendants.

WHEREFORE, for all the reasons aforesaid, defendants respectfully request that this

Court issue an Order denying third-party defendant’s Motion and granting such other and further

relief as to this Court may seem just and proper.

Dated: Brooklyn, New York
March 17, 2022

Yours, etc.,
BAKER, McEVOY & MOSKOVITS

/s/ __
By: MICHAEL LACHMAN
Attorneys for Defendant
YOSELIS VILLANUEVA
1 Metrotech Center, 8th Floor
Brooklyn, New York 11201
(212) 857-8230
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X INDEX NO.: 008813/22
THE CITY OF NEW YORK POLICE DEPARTMENT

Plaintiff,
WORD COUNT
CERTIFICATION
- against -

YOSELIS VILLANUEVA,
FILE NO. 1063022-03
Defendants. CASE ID: 121208
------------------------------------------------------------------------------X
YOSELIS VILLANUEVA,
Third-Party Plaintiff,
- against -

LUZ DEL ALBA SANTOS,
Third-Party Defendants.
------------------------------------------------------------------------------X
Pursuant to Uniform Rules §202.8-b, I, Michael Lachman, Esq. hereby certify that this

Affirmation complies with the word count limit of 7,000/4,200 words set forth therein. The total

number of words in this Affirmation, exclusive of any captions, tables of contents, tables of

authorities and signature blocks, is 1,190, pursuant to the word count in Microsoft Word, the

word-processing system used to prepare the document.

Dated: BROOKLYN, New York
March 17, 2022

BAKER McEVOY & MOSKOVITS

/s/ .__
MICHAEL LACHMAN
Attorneys for Defendants
1 Metrotech Center
Brooklyn, New York 11201
(212) 497-1685
Mailing Address
5 Broadway, Suite 3
Freeport, New York 11520
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X INDEX NO.: 008813/22
THE CITY OF NEW YORK POLICE DEPARTMENT

Plaintiffs,
STATEMENT OF
MATERIAL FACTS
- against -

YOSELIS VILLANUEVA,
FILE NO. 1063022-03
Defendants. CASE ID: 121208
------------------------------------------------------------------------------X
YOSELIS VILLANUEVA,

Third-Party Plaintiff,
- against -

LUZ DEL ALBA SANTOS,

Third-Party Defendants.
------------------------------------------------------------------------------X
STATEMENT OF MATERIAL FACTS

1. This is an action to recover damages for personal injuries allegedly sustained by plaintiff

as a result of a motor vehicle accident, which occurred on July 16, 2019, in the County,

City, and State of New York.

2. Per the certified police accident report, annexed in movant’s papers as EXHIBIT E, and

defendant YOSELIS VILLANUEVA’s MV-104, annexed hereto as EXHIBIT A,

plaintiff’s vehicle was clearly following too closely to not keeping a safe distance

between his vehicle and the defendant YOSELIS VILLANUEVA’s vehicle. When

defendant’s vehicle stopped, plaintiff’s vehicle rear-ended defendant’s vehicle. Per the

defendant’s MV-104, as well as third-party plaintiff’s affidavit, annexed in movant’s

papers as EXHIBIT F, when plaintiff’ rear-ended defendant’s vehicle, it caused his

vehicle to make contact with third-party defendant’s vehicle. The police report offers a
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

conflicting statement, where third-party defendant stopped abruptly due to a non-party

vehicle swerving into her lane, and which point third-party defendant was rear-ended by

defendant’s vehicle, which in turn was rear-ended by plaintiff’s vehicle. Clearly there is a

question of fact as to how the accident occurred. The only thing that is not in question is

that plaintiff’s rear-ended defendant’s vehicle.

3. Clearly, there is a question of fact within the instant case, which is enough to render

summary judgment on liability improper. Moreover, 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

defendant’s testimony, and to hear the testimony of each witness, and then determine

where the fault lies. Accordingly, summary judgment is improper, and this Court should

deny third-party defendant’s motion for summary judgment. Alternatively, if somehow

summary judgment on liability would be granted, as the only undisputed fact was that

plaintiff rear-ended defendant’s vehicle, summary judgment should be determined against

plaintiff as to defendants as well as third-party defendants.

Dated:
Brooklyn, New York
March 17, 2022
Yours, etc.,
BAKER, McEVOY & MOSKOVITS

EXHIBIT A
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

AFFIRMATION OF SERVICE

STATE OF NEW YORK )
) : SS :
COUNTY OF KINGS )

I, MICHAEL LACHMAN, an attorney duly admitted to practice law before the Courts
of the State of New York, affirms the following to be true to under the penalties of perjury
pursuant to CPLR 2106:
That I am not a party to this action, am over 18 years of age, and reside in Cherry Hill,
New Jersey.
That on March 17, 2023, I served the within AFFIRMATION IN OPPOSITION upon
the attorneys listed below at their listed addresses which were designated by said attorneys for
said purpose.

To: LINEBARGER GOGGAN BLAIR & SAMPSON, LLP
Attorneys for Plaintiffs
61 Broadway, Suite 2600
New York, New York 10006
(212) 518-0420

It is further affirmed that on March 17, 2023, I served the within AFFIRMATION IN
OPPOSITION upon the attorneys listed below at their listed email address which were
designated by said attorneys for said purpose.

To: CASSELLA AND SANDUSKY
Attorneys for Third-Party Defendants
MARTHA METZ
One Metrotech Center, 8th Floor
Brooklyn NY 11201
RSchefen@atrms.com

/s/
MICHAEL LACHMAN, ESQ.
FILED: NEW YORK COUNTY CLERK 01/23/2024 11:38 AM INDEX NO. 451294/2023
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/23/2024

Index No. 1046631/17

CIVIL COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
_______________________________________________________
THE CITY OF NEW YORK POLICE DEPARTMENT

Plaintiff(s),

-against-

YOSELIS VILLANUEVA,

Defendant(s),
_______________________________________________________

AND THIRD PARTY ACTION
_______________________________________________________

AFFIRMATION IN OPPOSITION

_______________________________________________________

BAKER, McEVOY & MOSKOVITS
1 Metrotech Center
Brooklyn, New York, 11201
(212) 857-8230
_______________________________________________________

To:

Attorney(s) for:
_______________________________________________________
Service of a copy of the within

is hereby admitted.
Dated,
..........................................................................................................

Attorney(s) for
_______________________________________________________

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