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FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------------------------------------X
ASHLEY BRACCO,
Plaintiff, AFFIRMATION IN
SUPPORT OF MOTION
-against-
O. NIEVES,
Defendants.
----------------------------------------X
THOMAS J. TIERNAN, an attorney duly admitted to practice law in the courts of the State
of New York, hereby makes this Affirmation under penalties of perjury:
1. I am associated with the firm of SURIS & ASSOCIATES, P.C., attomeys for the
Plaintiff herein. I have reviewed the file maintained by this office and as such am fully familiar with
the facts and circumstances surrounding this matter.
2. This Affirmation is submitted in support of Plaintiff's motion seeking an Order
granting summary judgment against the Defendants on the issue of liability.
3. Plaintiff should be granted summary judgment on the issue of liability because her
Defendant(s)'
motor vehicle was struck in the rear by motor vehicle without a non-negligent
explanation and there remains no issue of fact to be decided by the trier of facts.
PRELIMINARY STATEMENT
4. At the time of the subject accident, Plaintiff ASHLEY BRACCO's motor vehicle
was forcefully struck in the rear by the motor vehicle owned by Defendant, SKYWAY TRUCK
PARTS INC., and operated by Defendant, MARCUS O. NIEVES, causing Plaintiffto sustain serious
personal injuries.
5. The subject accident occurred on Friday, August 14, 2020, at approximately 4:40 pm.
The subject accident occurred on the Long Island Expressway (I495), approximately 1 mile west of
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exit 55, in the Town of Islip, County of Suffolk, State of New York.
PROCEDURAL HISTORY
6. The within action was commenced on or about January 4, 2023 and the Defendant
was served with a Summons and Complaint. Issue was joined shortly thereafter. The Complaint and
"A"
Answers are annexed hereto as Exhibits and "B", respectively.
7. At the time of the occurrence, Defendants, SKYWAY TRUCK PARTS INC. AND
MARCUS 0. NIEVES, were negligent, careless and reckless in the ownership, operation,
maintenance, inspection, repair and control of the aforesaid 2014 Toyota motor vehicle, bearing New
York license plate number ADS7962, including, without limitation, in operating the vehicle at a greater
rate of speed than care and caution would permit under the circumstances; following too closely; failure
to obey a traffic control device; failure to yield the right of way; failure to look, see and observe the
traffic and roadway conditions then and there existing; failure to maintain a proper lookout; failure to
observe the traffic signs and controls then and there in effect; failure to proceed in a safe and proper
manner; failure to exercise due care and caution in the operation and control of the motor vehicle; in
causing, allowing and permitting said motor vehicle to strike, collide, and come into contact with
another motor vehicle, failure to take due and proper notice of the presence of other vehicles on the
roadway; failure to make prompt, proper and timely use of the steering and braking mechanisms of the
motor vehicle; failure to maintain the braking and steering mechanisms of the motor vehicle in proper
adequate condition and/or repair; failure to maintain adequate control of the braking and steering
mechanisms of the motor vehicle; failure to give signal, sound or waming of the approach of the motor
vehicle; failure to avoid a collision and the injuries to Plaintiff; and in violating local and New York
"C"
State rules of the road, statutes, ordinances and/or regulations. Annexed hereto as Exhibit is a
copy of Plaintiff's Verified Bill of Particulars, dated March 24, 2023.
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"D"
8. Annexed hereto as Exhibit is a copy of the Police Report. The police report
Defendants'
indicates the points of impact being the front of vehicle to the rear-end of Plaintiff's
"
vehicle. See Exhibit D".
Defendants'
. . 9. . .. . Furthennore,_ the police report also cites vehicle, Vehicle 3, with
"following too closely", Box 19, Code 9 and "Driver Inattention/Distraction", Box 20, Code 4.
S_ee Exhibit "D".
10. Additionally, the police report also states that "Op of V3 reports his water bottle fell
undemeath his brake pedal and he therefore couldn't stop his vehicle until he rear ended V2, pushing
VI."
V2 into See Exhibit "D".
11. On May 8, 2022 the Plaintiff, ASHLEY BRACCO presented for an Examination
Before Trial, Annexed hereto as Exhibit "E". During said deposition, Plaintiff testified that she was
involved in an accident on August 14, 2020:
"E"
Plaintiff's Exhibit at pages 22-23, lines 25-12
Q: Thank you. Were you involved in a motor vehicle accident on August 14 1of
2020?
A: Yes.
Q: Were you a bicyclist, a driver, a passenger, a pedestrian, or something else?
A: Driver.
Q: What motor vehicle were you driving at the time?
A: 2014 Acura ILX.
Q: Were you the owner of that motor vehicle?
A: Yes.
"E"
Plaintiff's Exhibit at page 30, lines 12-18
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Q: Where did this accident occur?
A: On the Long Island Expressway heading east.
Q: Were you near any particular exit that you can recall, or did you pass any exit,
or something else?
A: It was just west of exit 55..
"E"
Plaintiff's Exhibit at page 23-24, line 17-14
Q: How did you first come to know you were involved in an accident? Did you
feel it, see it, something else?
A: I felt it.
Q: So you felt an impact?
A: Correct.
Q: To what portion of your vehicle did you feel the impact?
A: The back.
Q: The rear?
A: Rear.
Q: Would that be the entire rear or one portion of the rear?
A: The entire rear.
Q: Did you ever see the vehicle you had the accident with at any time prior to
the accident occurring?
A: No.
Q: Can you describe the impact for me; light, medium, heavy, some other way
you could tell me?
A: Very hard. Excruciating, hard.
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"E"
Plaintiff's Exhibit at page 34, lines 20-14
Q: You don't know, okay. When the accident occurred, was your car in motion
or was your car standing still?
A: Stopped.
Q: Can you describe what happened in the accident?
A: Yes.
Q: Go ahead.
A: I was stopped in traffic on the LIE, and I looked up in my rearview mirror
and I saw a orange truck directly behind me in my lane flying by, and I knew
there was nowhere for me to go. I couldn't go left or right because the traffic
was stopped, so I knew I was going to get hit from behind and I did.
Q: When you looked into the rearview mirror and saw this truck, you said
by,"
"flying was the truck in the same lane that you were in?
A: Yes.
"E"
Plaintiff's Exhibit at page 36-37, lines 13-5
Q: Okay. So did you move your vehicle or did you try to move your vehicle in
any way when you saw the truck but before the impact?
A: It was not possible. It was traffic on all lanes.
Q: Okay. So would it be fair to say that everything happened very quickly?
A: Yes.
Q: And that you didn't have time to react?
A: Yes.
Q: What portion of the truck impacted your vehicle?
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A: The front of the track.
Q: Impacted the rear of your vehicle?
A: Corrrect.
. Q: The trunk?
A: Yes.
"E"
Plaintiff's Exhibit at page 37-38, lines 14-14
Q: And as a result of that impact to the rear of your vehicle, what, if anything,
happened to your motor vehicle?
A: The impact caused my car to hit the car in front of me.
Q: The car that was in front of you, was that car moving or was it also stopped at
the time of the impact, the initial impact with the truck?
A: Stopped.
Q: Besides the impact to the rear of your vehicle, then the subsequent impact to
the front end of your vehicle with the car in front of you, did your vehicle
come into contact with any other motor vehicles?
A: No.
Q: How would you describe the impact to the rear of your vehicle?
A: Hard.
Q: How would you describe the impact between the front of your vehicle and
the vehicle in front of yours?
A: Hard, not as hard as from behind because there was room between my car
and the car in front of me, but it was still impactful,
12. Plaintiff, ASHLEY BRACCO stated in his sworn Affidavit, dated February 21,
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2024, a copy of which is Annexed hereto as Exhibit "F", the following:
ASHLEY BRACCO, being duly sworn, deposes and states the following upon information and
belief:
That I am the Plaintiff in the above-entitled action; am over 18 years of age; and
presently reside in the County of Nassau.
I am fully familiar with the facts and circumstances of this action.
That on Friday, August 14, 2020, at approximately 4:40 pm., I was stopped in traffic
operating a 2014 Acura motor vehicle, bearing New York license plate number
GNS9410 on the Long Island Expressway (I495), when I was forcefully struck in the
rear by a 2014 Toyota motor vehicle, bearing New York license plate number ADS7962,
owned BY Defendant, SKYWAY TRUCK PARTS INC. and operated by Defendant,
.MARCUS 0.NIEVES, who was traveling on the Long Island Expressway at an unsafe
speed.
As a result of that first impact to the rear of my vehicle I was propelled forward into the
car in front of me.
I did not come in contact with that vehicle until after I was impacted from behind by
Defendants, SKYWAY TRUCK PARTS INC. AND MARCUS O. NIEVES.
Defendant(s)'
I have attached pictures of the damage to my vehicle and vehicle which
fairly and accurately depicts the points of impact of the vehicles involved.
The initial points of impact were to the front-end of Defendant(s)', SKYWAY
TRUCK PARTS INC. AND MARCUS O. NIEVES's vehicle and the rear-end of
my vehicle.
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While my vehicle was on the Long Island Expressway, I had no reason to believe that
an impact was going to occur when the Defendant(s)', SKYWAY TRUCK PARTS
INC. AND MARCUS O. NIEVES's vehicle struck my vehicle, and I did not
contribute to the happening of the accident.
Theroad was straight and not curved in my direction of travel
As a result of the impact, I have sustained serious and severe personal injuries for
which I continue to receive medical treatment.
I understand that my attorneys are moving for Summary Judgment on the issue of
liability and respectfully submit this affidavit in support thereof.
13. Furthermore, throughout the instant litigation, the Plaintiff and Defendant(s) have
exchanged photographs ofthe vehicles involved in the accident showing points of impact were to the
Defendants'
front-end of vehicle and rear-end of the Plaintiff's vehicle. Annexed hereto as Exhibit
"G".
14. Moreover, based on the deposition transcript and the affidavit of the Plaintiff,
ASHLEY BRACCO, photographs and the information contained in Police Report, it is clear that
this is in fact arear-end collision and at the time of the incident, the Plaintiff, ASHLEY BRACCO,
was not negligent when she was impacted in the rear by Defendant(s)', SKYWAY TRUCK PARTS
INC. AND MARCUS O. NIEVES's vehicle, with no negligence on behalf of the Plaintiff.
15. Thus, your affirmant respectfully submits that the Plaintiff is entitled to Summary
Judgment on the issue of liability as a matter of law.
Dated: Melville, New York
February 22, 2024
THOMAS J. TIERNAN, ESQ.
SURIS & ASSOCIATES, P.C.
Attorneys for the Plaintiff
ASHLEY BRACCO
395 North Service Road, Suite 302
Melville, New York 11747
631-423-9700
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FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------X ASHLEY BRACCO, Plaintiff, AFFIRMATION IN SUPPORT OF MOTION -against- O. NIEVES, Defendants. ----------------------------------------X THOMAS J. TIERNAN, an attorney duly admitted to practice law in the courts of the State of New York, hereby makes this Affirmation under penalties of perjury: 1. I am associated with the firm of SURIS & ASSOCIATES, P.C., attomeys for the Plaintiff herein. I have reviewed the file maintained by this office and as such am fully familiar with the facts and circumstances surrounding this matter. 2. This Affirmation is submitted in support of Plaintiff's motion seeking an Order granting summary judgment against the Defendants on the issue of liability. 3. Plaintiff should be granted summary judgment on the issue of liability because her Defendant(s)' motor vehicle was struck in the rear by motor vehicle without a non-negligent explanation and there remains no issue of fact to be decided by the trier of facts. PRELIMINARY STATEMENT 4. At the time of the subject accident, Plaintiff ASHLEY BRACCO's motor vehicle was forcefully struck in the rear by the motor vehicle owned by Defendant, SKYWAY TRUCK PARTS INC., and operated by Defendant, MARCUS O. NIEVES, causing Plaintiffto sustain serious personal injuries. 5. The subject accident occurred on Friday, August 14, 2020, at approximately 4:40 pm. The subject accident occurred on the Long Island Expressway (I495), approximately 1 mile west of 1 of 8 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 exit 55, in the Town of Islip, County of Suffolk, State of New York. PROCEDURAL HISTORY 6. The within action was commenced on or about January 4, 2023 and the Defendant was served with a Summons and Complaint. Issue was joined shortly thereafter. The Complaint and "A" Answers are annexed hereto as Exhibits and "B", respectively. 7. At the time of the occurrence, Defendants, SKYWAY TRUCK PARTS INC. AND MARCUS 0. NIEVES, were negligent, careless and reckless in the ownership, operation, maintenance, inspection, repair and control of the aforesaid 2014 Toyota motor vehicle, bearing New York license plate number ADS7962, including, without limitation, in operating the vehicle at a greater rate of speed than care and caution would permit under the circumstances; following too closely; failure to obey a traffic control device; failure to yield the right of way; failure to look, see and observe the traffic and roadway conditions then and there existing; failure to maintain a proper lookout; failure to observe the traffic signs and controls then and there in effect; failure to proceed in a safe and proper manner; failure to exercise due care and caution in the operation and control of the motor vehicle; in causing, allowing and permitting said motor vehicle to strike, collide, and come into contact with another motor vehicle, failure to take due and proper notice of the presence of other vehicles on the roadway; failure to make prompt, proper and timely use of the steering and braking mechanisms of the motor vehicle; failure to maintain the braking and steering mechanisms of the motor vehicle in proper adequate condition and/or repair; failure to maintain adequate control of the braking and steering mechanisms of the motor vehicle; failure to give signal, sound or waming of the approach of the motor vehicle; failure to avoid a collision and the injuries to Plaintiff; and in violating local and New York "C" State rules of the road, statutes, ordinances and/or regulations. Annexed hereto as Exhibit is a copy of Plaintiff's Verified Bill of Particulars, dated March 24, 2023. 2 of 8 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 "D" 8. Annexed hereto as Exhibit is a copy of the Police Report. The police report Defendants' indicates the points of impact being the front of vehicle to the rear-end of Plaintiff's " vehicle. See Exhibit D". Defendants' . . 9. . .. . Furthennore,_ the police report also cites vehicle, Vehicle 3, with "following too closely", Box 19, Code 9 and "Driver Inattention/Distraction", Box 20, Code 4. S_ee Exhibit "D". 10. Additionally, the police report also states that "Op of V3 reports his water bottle fell undemeath his brake pedal and he therefore couldn't stop his vehicle until he rear ended V2, pushing VI." V2 into See Exhibit "D". 11. On May 8, 2022 the Plaintiff, ASHLEY BRACCO presented for an Examination Before Trial, Annexed hereto as Exhibit "E". During said deposition, Plaintiff testified that she was involved in an accident on August 14, 2020: "E" Plaintiff's Exhibit at pages 22-23, lines 25-12 Q: Thank you. Were you involved in a motor vehicle accident on August 14 1of 2020? A: Yes. Q: Were you a bicyclist, a driver, a passenger, a pedestrian, or something else? A: Driver. Q: What motor vehicle were you driving at the time? A: 2014 Acura ILX. Q: Were you the owner of that motor vehicle? A: Yes. "E" Plaintiff's Exhibit at page 30, lines 12-18 3 of 8 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 Q: Where did this accident occur? A: On the Long Island Expressway heading east. Q: Were you near any particular exit that you can recall, or did you pass any exit, or something else? A: It was just west of exit 55.. "E" Plaintiff's Exhibit at page 23-24, line 17-14 Q: How did you first come to know you were involved in an accident? Did you feel it, see it, something else? A: I felt it. Q: So you felt an impact? A: Correct. Q: To what portion of your vehicle did you feel the impact? A: The back. Q: The rear? A: Rear. Q: Would that be the entire rear or one portion of the rear? A: The entire rear. Q: Did you ever see the vehicle you had the accident with at any time prior to the accident occurring? A: No. Q: Can you describe the impact for me; light, medium, heavy, some other way you could tell me? A: Very hard. Excruciating, hard. 4 of 8 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 "E" Plaintiff's Exhibit at page 34, lines 20-14 Q: You don't know, okay. When the accident occurred, was your car in motion or was your car standing still? A: Stopped. Q: Can you describe what happened in the accident? A: Yes. Q: Go ahead. A: I was stopped in traffic on the LIE, and I looked up in my rearview mirror and I saw a orange truck directly behind me in my lane flying by, and I knew there was nowhere for me to go. I couldn't go left or right because the traffic was stopped, so I knew I was going to get hit from behind and I did. Q: When you looked into the rearview mirror and saw this truck, you said by," "flying was the truck in the same lane that you were in? A: Yes. "E" Plaintiff's Exhibit at page 36-37, lines 13-5 Q: Okay. So did you move your vehicle or did you try to move your vehicle in any way when you saw the truck but before the impact? A: It was not possible. It was traffic on all lanes. Q: Okay. So would it be fair to say that everything happened very quickly? A: Yes. Q: And that you didn't have time to react? A: Yes. Q: What portion of the truck impacted your vehicle? 5 of 8 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 A: The front of the track. Q: Impacted the rear of your vehicle? A: Corrrect. . Q: The trunk? A: Yes. "E" Plaintiff's Exhibit at page 37-38, lines 14-14 Q: And as a result of that impact to the rear of your vehicle, what, if anything, happened to your motor vehicle? A: The impact caused my car to hit the car in front of me. Q: The car that was in front of you, was that car moving or was it also stopped at the time of the impact, the initial impact with the truck? A: Stopped. Q: Besides the impact to the rear of your vehicle, then the subsequent impact to the front end of your vehicle with the car in front of you, did your vehicle come into contact with any other motor vehicles? A: No. Q: How would you describe the impact to the rear of your vehicle? A: Hard. Q: How would you describe the impact between the front of your vehicle and the vehicle in front of yours? A: Hard, not as hard as from behind because there was room between my car and the car in front of me, but it was still impactful, 12. Plaintiff, ASHLEY BRACCO stated in his sworn Affidavit, dated February 21, 6 of 8 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 2024, a copy of which is Annexed hereto as Exhibit "F", the following: ASHLEY BRACCO, being duly sworn, deposes and states the following upon information and belief: That I am the Plaintiff in the above-entitled action; am over 18 years of age; and presently reside in the County of Nassau. I am fully familiar with the facts and circumstances of this action. That on Friday, August 14, 2020, at approximately 4:40 pm., I was stopped in traffic operating a 2014 Acura motor vehicle, bearing New York license plate number GNS9410 on the Long Island Expressway (I495), when I was forcefully struck in the rear by a 2014 Toyota motor vehicle, bearing New York license plate number ADS7962, owned BY Defendant, SKYWAY TRUCK PARTS INC. and operated by Defendant, .MARCUS 0.NIEVES, who was traveling on the Long Island Expressway at an unsafe speed. As a result of that first impact to the rear of my vehicle I was propelled forward into the car in front of me. I did not come in contact with that vehicle until after I was impacted from behind by Defendants, SKYWAY TRUCK PARTS INC. AND MARCUS O. NIEVES. Defendant(s)' I have attached pictures of the damage to my vehicle and vehicle which fairly and accurately depicts the points of impact of the vehicles involved. The initial points of impact were to the front-end of Defendant(s)', SKYWAY TRUCK PARTS INC. AND MARCUS O. NIEVES's vehicle and the rear-end of my vehicle. 7 of 8 FILED: SUFFOLK COUNTY CLERK 02/23/2024 02:41 PM INDEX NO. 600234/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/23/2024 While my vehicle was on the Long Island Expressway, I had no reason to believe that an impact was going to occur when the Defendant(s)', SKYWAY TRUCK PARTS INC. AND MARCUS O. NIEVES's vehicle struck my vehicle, and I did not contribute to the happening of the accident. Theroad was straight and not curved in my direction of travel As a result of the impact, I have sustained serious and severe personal injuries for which I continue to receive medical treatment. I understand that my attorneys are moving for Summary Judgment on the issue of liability and respectfully submit this affidavit in support thereof. 13. Furthermore, throughout the instant litigation, the Plaintiff and Defendant(s) have exchanged photographs ofthe vehicles involved in the accident showing points of impact were to the Defendants' front-end of vehicle and rear-end of the Plaintiff's vehicle. Annexed hereto as Exhibit "G". 14. Moreover, based on the deposition transcript and the affidavit of the Plaintiff, ASHLEY BRACCO, photographs and the information contained in Police Report, it is clear that this is in fact arear-end collision and at the time of the incident, the Plaintiff, ASHLEY BRACCO, was not negligent when she was impacted in the rear by Defendant(s)', SKYWAY TRUCK PARTS INC. AND MARCUS O. NIEVES's vehicle, with no negligence on behalf of the Plaintiff. 15. Thus, your affirmant respectfully submits that the Plaintiff is entitled to Summary Judgment on the issue of liability as a matter of law. Dated: Melville, New York February 22, 2024 THOMAS J. TIERNAN, ESQ. SURIS & ASSOCIATES, P.C. Attorneys for the Plaintiff ASHLEY BRACCO 395 North Service Road, Suite 302 Melville, New York 11747 631-423-9700 8 of 8