Preview
FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/23/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------------------------------X
ASHLEY BRACCO,
MEMORANDUM OF
Plaintiff, LAW IN SUPPORT OF
MOTION
-against-
SKYWAY TRUCK PARTS INC. AND MARCUS O. Index No.: 600234/2023
NIEVES,
Defendants.
_________---______________________________Ç
THOMAS J. TIERNAN, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following under the penalties of perjury:
1. I am the of record for the ASHLEY in the above-
attorney Plaintiff, BRACCO,
captioned matter. I am fully familiar with the facts and circumstances set forth herein, the source
of my knowledge being the records and other discovery materials maintained by my office in the
course of handling this matter.
2. Based on the undisputed material facts and circumstances surrounding the subject
accident of August 14, 2020, as set forth and described herein, summary judgment on the issue
of liability should be granted in favor of Plaintiff for the following reasons:
THE LAW IN NEW YORK
3. "It is well established that when a driver approaches another vehicle from the rear, he is
bound to maintain a reasonably safe rate of speed, maintain control of his vehicle, and use
vehicle."
reasonable care to avoid colliding with the other Barile v. Lazzarini, 222 A.D.2d 635, 637
(2d Dept. 1995) (citing Benyarko v. Avis Rent A Car System, Inc., 162 A.D.2d 572, 573 (2d Dept.
1990); Young v. City of New York, 113 A.D.2d 833-834 (2d Dept. 1985)).
4. Summary judgment should be granted to plaintiff on the issue ofliability where, as here, the
defendant's vehicle changed lanes when it is hazardous to do so in violation of Vehicle & Traffic
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Law § 1128(b). Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 (1st Dept. 2009);
Zummo v. Holmes, 57 A.D.3d 366, 869 N.Y.S.2d 447 (1st Dept. 2008).
5. "When a rear-end collision occurs . .. such collision is sufficient to create a prima facie case
of liability on the part of Defendant and imposes a duty of explanation with respect to the operator of
vehicle."
the offending Young, 113 A.D.2d at 833-34 (citing O'Callaghan v. Flitter, 112 A.D.2d
1030 (2d Dept. 1985)).
6. A rear end collision with a stopped or stopping automobile establishes aprimafacie case of
negligence against the operator of the moving vehicle. Leal, et al. v. Wolff, 224 A.D.2d 392, 638
(2nd
N.Y.S.2d 110 Dept. 1996). The owner of the moving vehicle then has a duty to come forward
and explain how the accident occurred. Gambino v. City of New York, 205 A.D.2d 583, 613
(2"d
N.Y.S.2d 417 Dept 1994). The duty is imposed on the operator of the moving vehicle because
he is in the best position to explain how the accident occurred. Young v. City of New York, 113
(2nd
A.D.2d 833, 493 N.Y.S.2d 585 Dept. 1985).
7. "Since [Defendant] was under a duty to maintain a safe distance between the two vehicles,
his failure to do so in the absence of an adequate, nonnegligent explanation constitute[s] negligence
law."
as a matter of Barile, 222 A.D.2d at 637 (citing Vehicle and Traffic Law § 1129a.).
8. Moreover, "a driver is charged with the duty to see that which under the facts and
senses"
circumstances she should have seen by the proper use of her and if the defendant did not
observe that which was there to be seen, she may be found negligent in failing to look or not looking
carefully. See PR 2:77.1; Le Claire v. Pratt, 270 A.D.2d 612, 613 (3d Dept. 2000) (driver is
obligated to see what there was to be seen).
9. Defendant was required to safely approach the upcoming traffic and not cause a collision
between the vehicles. Defendant's actions were the sole proximate cause of the accident.
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10. There is no question of fact with regard to how this incident occurred and that it was
totally and completely a result of the negligence of the Defendants.
AN IMMEDIATE TRIAL ON THE ISSUE OF DAMAGES IS WARRANTED
11. CPLR 3212 (c) states: ..u .. o . .
..
"If it appears that the only triable issue of fact arising on the motion for summary
judgment relates to the amount of damages... the court may, when appropriate for
the expeditious disposition of the controversy, offer animmediate trial on such issues
of fact raised by the motion before a referred, before the court and a jury whichever
proper..."
may be [See generally, McKinney's Consolidated Laws of the State of
New York, CPLR Section 3212 (c).
12. Your affirmant submits that the only issue left in the Plaintiff's case is that of
damages given the fact that the Plaintiff has established one hundred (100%) percent negligence on
the part of the Defendants herein.
13. Accordingly your affumant respectfully requests that the Court make an order for an
immediate trial on the issue of damages.
14. There is no question offect with regard to how this incident occurred and that it was totally
and completely a result of the negligence of the Defendant(s), SKYWAY TRUCK PARTS INC.
AND MARCUS 0. NIEVES.
WHEREFORE, it is respectfully requested this Court issue an Order granting
Summary Judgment on the issue of liability against the Defendants, setting this matter down for an
immediate trial on the issue of damages together with such other and further relief as this Court may
deem just and proper.
Dated: Melville, New York
February 22, 2024
THOMAS J. TIERNAN, ESQ.
SURIS & ASSOCIATES, P.C.
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Attorneys for the Plaintiff
ASHLEY BRACCO
395 North Service Road, Suite 302
Melville, New York 11747
631-423-9700
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CERTIFICATION OF WORD COUNT PURSUANT TO SECTION 202.8-b
I, THOMAS J. TIERNAN, an attorney duly admitted to practice in the Courts of the
State of New York, state:
I am an associate of the firm of SURIS & ASSOCIATES, P.C., attorneys of record for
the Plaintiff, ASHLEY BRACCO, in the within action. I hereby certify, pursuant to Rule 202.8-b of
the Uniform Civil rules for the Supreme Court and the County Court that the attached Affirmation in
Support, Statement of Material Facts, Memorandum of Law and Notice of Motion has a word count of
4,382 inclusive of the headings and certification. Said knowledge is based on the word -count of the
word processing system used to prepare the document.
Dated: Melville, New York
February 22, 2024
TH1MA5 J. TIERNAN, Esq.
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Preview
FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/23/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------------------X ASHLEY BRACCO, MEMORANDUM OF Plaintiff, LAW IN SUPPORT OF MOTION -against- SKYWAY TRUCK PARTS INC. AND MARCUS O. Index No.: 600234/2023 NIEVES, Defendants. _________---______________________________Ç THOMAS J. TIERNAN, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury: 1. I am the of record for the ASHLEY in the above- attorney Plaintiff, BRACCO, captioned matter. I am fully familiar with the facts and circumstances set forth herein, the source of my knowledge being the records and other discovery materials maintained by my office in the course of handling this matter. 2. Based on the undisputed material facts and circumstances surrounding the subject accident of August 14, 2020, as set forth and described herein, summary judgment on the issue of liability should be granted in favor of Plaintiff for the following reasons: THE LAW IN NEW YORK 3. "It is well established that when a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed, maintain control of his vehicle, and use vehicle." reasonable care to avoid colliding with the other Barile v. Lazzarini, 222 A.D.2d 635, 637 (2d Dept. 1995) (citing Benyarko v. Avis Rent A Car System, Inc., 162 A.D.2d 572, 573 (2d Dept. 1990); Young v. City of New York, 113 A.D.2d 833-834 (2d Dept. 1985)). 4. Summary judgment should be granted to plaintiff on the issue ofliability where, as here, the defendant's vehicle changed lanes when it is hazardous to do so in violation of Vehicle & Traffic 1 of 5 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/23/2024 Law § 1128(b). Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 (1st Dept. 2009); Zummo v. Holmes, 57 A.D.3d 366, 869 N.Y.S.2d 447 (1st Dept. 2008). 5. "When a rear-end collision occurs . .. such collision is sufficient to create a prima facie case of liability on the part of Defendant and imposes a duty of explanation with respect to the operator of vehicle." the offending Young, 113 A.D.2d at 833-34 (citing O'Callaghan v. Flitter, 112 A.D.2d 1030 (2d Dept. 1985)). 6. A rear end collision with a stopped or stopping automobile establishes aprimafacie case of negligence against the operator of the moving vehicle. Leal, et al. v. Wolff, 224 A.D.2d 392, 638 (2nd N.Y.S.2d 110 Dept. 1996). The owner of the moving vehicle then has a duty to come forward and explain how the accident occurred. Gambino v. City of New York, 205 A.D.2d 583, 613 (2"d N.Y.S.2d 417 Dept 1994). The duty is imposed on the operator of the moving vehicle because he is in the best position to explain how the accident occurred. Young v. City of New York, 113 (2nd A.D.2d 833, 493 N.Y.S.2d 585 Dept. 1985). 7. "Since [Defendant] was under a duty to maintain a safe distance between the two vehicles, his failure to do so in the absence of an adequate, nonnegligent explanation constitute[s] negligence law." as a matter of Barile, 222 A.D.2d at 637 (citing Vehicle and Traffic Law § 1129a.). 8. Moreover, "a driver is charged with the duty to see that which under the facts and senses" circumstances she should have seen by the proper use of her and if the defendant did not observe that which was there to be seen, she may be found negligent in failing to look or not looking carefully. See PR 2:77.1; Le Claire v. Pratt, 270 A.D.2d 612, 613 (3d Dept. 2000) (driver is obligated to see what there was to be seen). 9. Defendant was required to safely approach the upcoming traffic and not cause a collision between the vehicles. Defendant's actions were the sole proximate cause of the accident. 2 of 5 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/23/2024 10. There is no question of fact with regard to how this incident occurred and that it was totally and completely a result of the negligence of the Defendants. AN IMMEDIATE TRIAL ON THE ISSUE OF DAMAGES IS WARRANTED 11. CPLR 3212 (c) states: ..u .. o . . .. "If it appears that the only triable issue of fact arising on the motion for summary judgment relates to the amount of damages... the court may, when appropriate for the expeditious disposition of the controversy, offer animmediate trial on such issues of fact raised by the motion before a referred, before the court and a jury whichever proper..." may be [See generally, McKinney's Consolidated Laws of the State of New York, CPLR Section 3212 (c). 12. Your affirmant submits that the only issue left in the Plaintiff's case is that of damages given the fact that the Plaintiff has established one hundred (100%) percent negligence on the part of the Defendants herein. 13. Accordingly your affumant respectfully requests that the Court make an order for an immediate trial on the issue of damages. 14. There is no question offect with regard to how this incident occurred and that it was totally and completely a result of the negligence of the Defendant(s), SKYWAY TRUCK PARTS INC. AND MARCUS 0. NIEVES. WHEREFORE, it is respectfully requested this Court issue an Order granting Summary Judgment on the issue of liability against the Defendants, setting this matter down for an immediate trial on the issue of damages together with such other and further relief as this Court may deem just and proper. Dated: Melville, New York February 22, 2024 THOMAS J. TIERNAN, ESQ. SURIS & ASSOCIATES, P.C. 3 of 5 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/23/2024 Attorneys for the Plaintiff ASHLEY BRACCO 395 North Service Road, Suite 302 Melville, New York 11747 631-423-9700 4 of 5 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 02/23/2024 CERTIFICATION OF WORD COUNT PURSUANT TO SECTION 202.8-b I, THOMAS J. TIERNAN, an attorney duly admitted to practice in the Courts of the State of New York, state: I am an associate of the firm of SURIS & ASSOCIATES, P.C., attorneys of record for the Plaintiff, ASHLEY BRACCO, in the within action. I hereby certify, pursuant to Rule 202.8-b of the Uniform Civil rules for the Supreme Court and the County Court that the attached Affirmation in Support, Statement of Material Facts, Memorandum of Law and Notice of Motion has a word count of 4,382 inclusive of the headings and certification. Said knowledge is based on the word -count of the word processing system used to prepare the document. Dated: Melville, New York February 22, 2024 TH1MA5 J. TIERNAN, Esq. 5 of 5