Preview
FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------________----___-X
JONATHAN ROZINSKY and IRIS AMIGON
ROZINSKY Index No. 701069/2023
Plaintiffs,
-against-
JOHN H. LEE,
Defendant.
-----------------------------------------__________----------X
PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR SUMMARY
JUDGMENT AS TO THE ISSUE OF LIABILITY
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PLAITNIFFS JONATHAN ROZINSKY and IRIS AMIGON ROZINSKY, by and through
their attorneys, HACH & ROSE, LLP., submits this Memorandum in Support of their motion for Summary
Judgment as to the issue of Liability.
1. Plaintiffs seek an Order for Summary Judgment against the defendants on the issue
of liability pursuant to Civil Practice Law and Rules 3212. The present motion should be granted
because there are no material issues of fact to be resolved at trial concerning the defendant's
liability for the negligence accident that underlies this action.
PROCEDURAL HISTORY
2. A Summons and Verified Complaint were filed on January 1, 2023. The issue was
joined by Defendants through submission of an Answer on March 20, 2023. A copy of such
pleadings are attached hereto as Exhibit "A".
3. Plaintiff driver Jonathan Rozinsky's Examination before trial was held on
November 28, 2023, a copy of the transcript is annexed hereto as Exhibit B.
4. Defendant John H Lee's Examination before trial was held on December 8, 2023,
a copy of the transcript is annexed hereto as Exhibit C.
RELEVANT FACTS
5. The present action arises out of a motor vehicle accident that occurred on May 28,
2022 at approximately 4:30 p.m. when the vehicle Plaintiff Jonathan Rozinsky was operating and
Defendants'
Plaintiff Iris Amigon Rozinsky was a passenger in was struck directly in the rear by
vehicle.
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6. The plaintiff was stopped for traffic on the Trans-Manhattan Expressway when
defendant did strike plaintiff's vehicle directly in the rear.
7. Plaintiff, in his Examination before trial, testified to the following:
" On the of the accident, Mr. was the operator of
day Rozinsky
a motor vehicle with his wife, Co- Plaintiff Iris in the
Rozinsky, sitting
front passenger seat. Pg 28.
Expressway."
" The accident occurred on the "Trans-Manhattan
Pg 29.
" Plaintiff was the speed limit the
travelling along roadway
when he had to bring his vehicle to a gradual stop for traffic in front
of him. Pg 36.
" While plaintiff was stopped for traffic, his vehicle was struck
in the rear by defendant's vehicle. Pg. 37.
" At the time of the accident, the plaintiff's foot was on the
brake. Pg. 38.
8. Defendant, in his Examination before trial, testified to the following:
" Defendant was behind Plaintiff's vehicle in traffic. Pg.
travelling
18.
" Defendant could not estimate the space between the front of his
vehicle and the rear of plaintiff's vehicle, could not recall how
fast the plaintiff's vehicle was travelling. Pg 18 -19.
" Just prior to the impact, plaintiff's vehicle was stopped. Pg. 19.
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" Defendant did not have enough time to react to traffic, which
resulted in the collision. Pg 28.
9. There was no reason for the Defendant to strike the Plaintiff's vehicle in the rear,
except that the Defendant was negligent in the operation of his vehicle, travelling at an unsafe
speed, failing to maintain a safe distance between his vehicle and plaintiff's vehicle, failing to
maintain his vehicle is good and safe working order, and failing to see what was there to be seen;
those being the negligent acts that caused the within accident. Due to his imprudent driving,
Defendant struck the Plaintiff's vehicle directly in the rear, while plaintiff was at complete stop
for traffic.
10. Plaintiff was travelling straight, with his eyes looking ahead at the traffic in front
of his and brought his vehicle to a complete stop in response to the traffic conditions in front of
him. There was nothing she could have done to avoid the impact.
11. Based upon these circumstances, Plaintiff submits that they are entitled to judgment
on the liability as a matter of law.
LEGAL STANDARD
12. It is well settled that on a motion for summary judgment, the Movant must establish
its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a
matter of law. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980);
Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979);
(2nd
Lehmann v. Sheaves, 231 A.D.2d 687, 647 N.Y.S.2d 557 Dept., 1996); Perlicz v. Redeemer
(2nd
Lutheran Church, 229 A.D.2d 378, 644 N.Y.S.2d 787 Dept., 1996).
13. It is also well settled that the operator of a motor vehicle is under a duty to operate
his motor vehicle with reasonable care, to be aware of the actual and potential hazards existing
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from road conditions, and to see that which, under the facts and circumstances, he should have
seen by the proper use of his senses. See PJI 277.1; Vehicle and Traffic Law Section 1129(a);
(2nd
Marsella v. Sound Distributing Corp., 248 AD2d 683 Dept., 1998); McCarthy v. Miller,
(2nd
139 AD2d 500 Dept., 1998).
14. It has repeatedly been held that "a following vehicle which rear-ended a lead
law."
vehicle is negligent as a matter of Countermine v. Galka, 189 A.D.2d 1043, 593 N.Y.S.2d
(2nd
113, Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423, 425 Dept., 1991), Leal v.
(2nd
Wolff, 224 AD2d 392, 393 Dept., 1996); Tricoli v. Malik, 268 AD2d 469, 470 (2000), Cacace
(2nd
v. DiStefano, 276 A.D.2d 457, 713 N.Y.S.2d 758 Dept., 2000).
15. When a driver approaches another vehicle from the rear, he is bound to maintain a
reasonably safe rate of speed and use reasonable care to avoid colliding with the other vehicle. See
(2nd
C rociata v. Vasquez, 168 AD2d 410 Dept., 1990); Young v. City of New York, supra. The
failure to offer a non-negligent explanation for the collision constitutes negligence as a matter of
(2nd
law. See Leal v. Wolff, 224 AD2d 392 Dept., 1996); Abramowicz v. Roberto, 220 AD2d
(2nd (2nd
374, 375 Dept., 1995); Aromando v. City of New York, 220 AD2d 617 994
(2"d
Silberman v. Surrey Cadillac Limousine Service, 109 AD2d 833 Dept., 1985).
16. Summary Judgment has consistently been granted to the lead vehicle of a rear-end
collision. See, Ben janko v. Avis Rent A Car System, Inc., 162 A.D.2d 572, 526 N.Y.S.2d 848
(2nd
Dept., 1988).
17. In the landmark case of Rodriguez v. City of New York, 2018 NY Slip Op 02287,
the Court of Appeals of the State of New York ruled that in order for a Plaintiff to be entitled to
partial summary judgment on the issue of liability, the Plaintiff does not bear the burden of
establishing the absence of their own comparative negligence in order to be awarded partial
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summary judgment as to liability. Comparative negligence is not a defense to a cause of action of
negligence, because it does not a defense to any element of Plaintiff's prima facie cause of action
for negligence. Id. A Plaintiff's comparative negligence is no longer a complete defense to be
pleaded and proven by the Plaintiff, but rather is only relevant to the mitigation of Plaintiff's
damages. Id.
ARGUMENT
18. It is clear from the facts stated above that Defendant was negligent in the operation
of his motor vehicle and is the sole proximate cause of the accident.
19. Plaintiff has established through the submission of his sworn testimony that he had
brought his vehicle to a complete stop when the when Defendant did strike their vehicle in the rear.
20. Based on the foregoing, plaintiff has made a prima facie showing of their
entitlement to an Order granting Summary Judgment in their favor as to the issue of liability.
21. The burden has shifted to defendant to provide a non-negligent reason for striking
plaintiffs'
the vehicle in the rear, which he cannot do.
22. Defendant testified that he was unable to bring his vehicle to a stop, and contacted
the rear portion of plaintiff's stopped vehicle.
23. Given the absence of any issues of fact regarding liability, plaintiff's motion should
be granted and a trial on damages only should remain.
24. As such Summary Judgment on the issue of liability must be granted as there are
no issues of fact that remain unresolved, and Plaintiff has established his prima facie entitlement
to summary judgment.
25. No previous request for this or similar relief has been made to this or any other
court.
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WHEREFORE, the plaintiff prays for an order granting plaintiff summary judgment
on the issue of liability and for such other and further relief as the Court deems just and proper
under the circumstances.
Dated: New York, New York
January 22, 2024
ROURK A. MULDERIG, SQ.
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Preview
FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------________----___-X JONATHAN ROZINSKY and IRIS AMIGON ROZINSKY Index No. 701069/2023 Plaintiffs, -against- JOHN H. LEE, Defendant. -----------------------------------------__________----------X PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT AS TO THE ISSUE OF LIABILITY 2 1 of 7 FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024 PLAITNIFFS JONATHAN ROZINSKY and IRIS AMIGON ROZINSKY, by and through their attorneys, HACH & ROSE, LLP., submits this Memorandum in Support of their motion for Summary Judgment as to the issue of Liability. 1. Plaintiffs seek an Order for Summary Judgment against the defendants on the issue of liability pursuant to Civil Practice Law and Rules 3212. The present motion should be granted because there are no material issues of fact to be resolved at trial concerning the defendant's liability for the negligence accident that underlies this action. PROCEDURAL HISTORY 2. A Summons and Verified Complaint were filed on January 1, 2023. The issue was joined by Defendants through submission of an Answer on March 20, 2023. A copy of such pleadings are attached hereto as Exhibit "A". 3. Plaintiff driver Jonathan Rozinsky's Examination before trial was held on November 28, 2023, a copy of the transcript is annexed hereto as Exhibit B. 4. Defendant John H Lee's Examination before trial was held on December 8, 2023, a copy of the transcript is annexed hereto as Exhibit C. RELEVANT FACTS 5. The present action arises out of a motor vehicle accident that occurred on May 28, 2022 at approximately 4:30 p.m. when the vehicle Plaintiff Jonathan Rozinsky was operating and Defendants' Plaintiff Iris Amigon Rozinsky was a passenger in was struck directly in the rear by vehicle. 3 2 of 7 FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024 6. The plaintiff was stopped for traffic on the Trans-Manhattan Expressway when defendant did strike plaintiff's vehicle directly in the rear. 7. Plaintiff, in his Examination before trial, testified to the following: " On the of the accident, Mr. was the operator of day Rozinsky a motor vehicle with his wife, Co- Plaintiff Iris in the Rozinsky, sitting front passenger seat. Pg 28. Expressway." " The accident occurred on the "Trans-Manhattan Pg 29. " Plaintiff was the speed limit the travelling along roadway when he had to bring his vehicle to a gradual stop for traffic in front of him. Pg 36. " While plaintiff was stopped for traffic, his vehicle was struck in the rear by defendant's vehicle. Pg. 37. " At the time of the accident, the plaintiff's foot was on the brake. Pg. 38. 8. Defendant, in his Examination before trial, testified to the following: " Defendant was behind Plaintiff's vehicle in traffic. Pg. travelling 18. " Defendant could not estimate the space between the front of his vehicle and the rear of plaintiff's vehicle, could not recall how fast the plaintiff's vehicle was travelling. Pg 18 -19. " Just prior to the impact, plaintiff's vehicle was stopped. Pg. 19. 3 of 7 FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024 " Defendant did not have enough time to react to traffic, which resulted in the collision. Pg 28. 9. There was no reason for the Defendant to strike the Plaintiff's vehicle in the rear, except that the Defendant was negligent in the operation of his vehicle, travelling at an unsafe speed, failing to maintain a safe distance between his vehicle and plaintiff's vehicle, failing to maintain his vehicle is good and safe working order, and failing to see what was there to be seen; those being the negligent acts that caused the within accident. Due to his imprudent driving, Defendant struck the Plaintiff's vehicle directly in the rear, while plaintiff was at complete stop for traffic. 10. Plaintiff was travelling straight, with his eyes looking ahead at the traffic in front of his and brought his vehicle to a complete stop in response to the traffic conditions in front of him. There was nothing she could have done to avoid the impact. 11. Based upon these circumstances, Plaintiff submits that they are entitled to judgment on the liability as a matter of law. LEGAL STANDARD 12. It is well settled that on a motion for summary judgment, the Movant must establish its defense or cause of action sufficiently to warrant a court's directing judgment in its favor as a matter of law. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979); (2nd Lehmann v. Sheaves, 231 A.D.2d 687, 647 N.Y.S.2d 557 Dept., 1996); Perlicz v. Redeemer (2nd Lutheran Church, 229 A.D.2d 378, 644 N.Y.S.2d 787 Dept., 1996). 13. It is also well settled that the operator of a motor vehicle is under a duty to operate his motor vehicle with reasonable care, to be aware of the actual and potential hazards existing 5 4 of 7 FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024 from road conditions, and to see that which, under the facts and circumstances, he should have seen by the proper use of his senses. See PJI 277.1; Vehicle and Traffic Law Section 1129(a); (2nd Marsella v. Sound Distributing Corp., 248 AD2d 683 Dept., 1998); McCarthy v. Miller, (2nd 139 AD2d 500 Dept., 1998). 14. It has repeatedly been held that "a following vehicle which rear-ended a lead law." vehicle is negligent as a matter of Countermine v. Galka, 189 A.D.2d 1043, 593 N.Y.S.2d (2nd 113, Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423, 425 Dept., 1991), Leal v. (2nd Wolff, 224 AD2d 392, 393 Dept., 1996); Tricoli v. Malik, 268 AD2d 469, 470 (2000), Cacace (2nd v. DiStefano, 276 A.D.2d 457, 713 N.Y.S.2d 758 Dept., 2000). 15. When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and use reasonable care to avoid colliding with the other vehicle. See (2nd C rociata v. Vasquez, 168 AD2d 410 Dept., 1990); Young v. City of New York, supra. The failure to offer a non-negligent explanation for the collision constitutes negligence as a matter of (2nd law. See Leal v. Wolff, 224 AD2d 392 Dept., 1996); Abramowicz v. Roberto, 220 AD2d (2nd (2nd 374, 375 Dept., 1995); Aromando v. City of New York, 220 AD2d 617 994 (2"d Silberman v. Surrey Cadillac Limousine Service, 109 AD2d 833 Dept., 1985). 16. Summary Judgment has consistently been granted to the lead vehicle of a rear-end collision. See, Ben janko v. Avis Rent A Car System, Inc., 162 A.D.2d 572, 526 N.Y.S.2d 848 (2nd Dept., 1988). 17. In the landmark case of Rodriguez v. City of New York, 2018 NY Slip Op 02287, the Court of Appeals of the State of New York ruled that in order for a Plaintiff to be entitled to partial summary judgment on the issue of liability, the Plaintiff does not bear the burden of establishing the absence of their own comparative negligence in order to be awarded partial 6 5 of 7 FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024 summary judgment as to liability. Comparative negligence is not a defense to a cause of action of negligence, because it does not a defense to any element of Plaintiff's prima facie cause of action for negligence. Id. A Plaintiff's comparative negligence is no longer a complete defense to be pleaded and proven by the Plaintiff, but rather is only relevant to the mitigation of Plaintiff's damages. Id. ARGUMENT 18. It is clear from the facts stated above that Defendant was negligent in the operation of his motor vehicle and is the sole proximate cause of the accident. 19. Plaintiff has established through the submission of his sworn testimony that he had brought his vehicle to a complete stop when the when Defendant did strike their vehicle in the rear. 20. Based on the foregoing, plaintiff has made a prima facie showing of their entitlement to an Order granting Summary Judgment in their favor as to the issue of liability. 21. The burden has shifted to defendant to provide a non-negligent reason for striking plaintiffs' the vehicle in the rear, which he cannot do. 22. Defendant testified that he was unable to bring his vehicle to a stop, and contacted the rear portion of plaintiff's stopped vehicle. 23. Given the absence of any issues of fact regarding liability, plaintiff's motion should be granted and a trial on damages only should remain. 24. As such Summary Judgment on the issue of liability must be granted as there are no issues of fact that remain unresolved, and Plaintiff has established his prima facie entitlement to summary judgment. 25. No previous request for this or similar relief has been made to this or any other court. 7 6 of 7 FILED: QUEENS COUNTY CLERK 01/22/2024 04:16 PM INDEX NO. 701069/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 01/22/2024 WHEREFORE, the plaintiff prays for an order granting plaintiff summary judgment on the issue of liability and for such other and further relief as the Court deems just and proper under the circumstances. Dated: New York, New York January 22, 2024 ROURK A. MULDERIG, SQ. 8 7 of 7