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FILED: RICHMOND COUNTY CLERK 10/22/2018 11:26 AM INDEX NO. 151775/2016
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 10/22/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
X INDEX NO.: 151775/2016
KURT GORIN,
Plaintiff,
AFFIRMATION
- against - IN OPPOSITJON
SU HO MIN,
Defendant(s). FILE NO.: 661025
CASE NO: 85142
BRENDON CASSELLA, 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, MORRISSEY & MOSKOVITS, P.C.,
attorneys for the defendant, SU HO MIN, 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
the Motion of plaintiff seeking an Order granting summary judgment in favor of plaintiff's on the
issue of liabilityseeking an Order granting them summary judgment on the issue of liability.
3. This action arises out of a motor vehicle accident that occurred on July 3, 2015,
at Narrows Road South in the County of Richmond, City and State of New York.
SUMMARY JUDGMENT IS INAPPROPRIATE WHERE
GENUlNE ISSUES OF MATERIAL FACT EXIST
4. Summary judgment is a drastic remedy because itdeprives the litigants of their
day in Court and itshould only be empicyed 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
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material fact, summary judgment is not granted and a plenary trialis ordered. Goodman v.
Goodman, 62 A.D.2d 939 (1st Dep't 1978).
6. Furthermore, movañt has the burden to offer evidence sufficient to eliminate any
material issue of fact. Summary judgment willbe denied, even in the absence of cocosing
papers. where plaintiff'smcving affidavits fail to meet the stringent evidentiary burden placed
upon movant. Falk v. Gcedman, 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"); Cuqini 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);
Schñeider 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 allthe 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 cidiñarily a question of
fact to be determined by the jury. Foltis Inc. v. City of New York, 287 N.Y. 108; Sa|cmone v.
Yellow Taxi Corp., 242 N.Y. 251. Furthermore, the questicñ 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.
proof"
9. In the instant case, the moving papers and the "evidentiary submitted
therewith, as pointed out herein, confirm rather than eliminate the existence of material
questions of fact.
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10. The emergency doctrine applies when "those faced with a sudden and
unexpected circumstance, not of their own making, that leaves them with littleor no time for
reflection or reasonably causes them to be so disturbed that they are compelled to make a quick
decisica without weighing alternative courses of conduct, may not be neg|igent iftheir actions
emergency."
are reas0ñable and prudent in the context of the See Bello v. Transit Autharity of
New York City, 12 A.D.3d 783 (2d Dep't 2004) citing to Caristo v. Sanzone. 96 N.Y.2d 172 and
Rivera v. New York City Tr. Auth.. 77 N.Y.2d 322.
11. The defendant HO MIN SU testified that on July 3, 2015 he was involved in an
automobile accident where he struck the vehicle in the rear. See page 7 lines 6-8 and page 9
lines 9-16. Mr. Su states that he struck the vehicle in front of him because he was blinded by the
suns glare. See page 11 lines 7-10 and page 12 lines 7-21. Mr. Su was only bliñded by the suns
glare immediate!y before the accideñt occurred. See page 11 lines 21-25 and page 12 lines 2-6.
Mr. Su attempted was in the process of slowing down when the accident occurred. See page 12
lines 12-25. A copy of defendant HO MIN SU's depositioñ transcript is annexed hereto as
"Exhibit A".
12. In this case, there is a basis for a jury to find defendant HO MIN SU did not
aparate his vehicle in a negligent way as there was no way he could have anticipated being
blinded by the sun's glare immediately before the accident. In this case defendant HO MlN SU
acted as a reasonably prudent person by slowing down when his vision was impacted. At the
very least, there exist issues of fact about whether the defendant could have avoided the
ccilisicñ. Such issues are sufficient to preclude summary judgment in the instant case.
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WHEREFORE, for allthe reasons aforesaid, defendant respectfully requests that this
plaintiffs'
Court issue an Order denying Motioñ for summary judgment as to liabilityand granting
such other and further reliefas to this Court may seem just and proper.
Dated: Brooklyn, New York
October 22, 2018
Yours, etc.,
BAKER, McEVOY, MORRISSEY
& MOSKOVITS P.C.
By: BRENDON CASSELLA
Attorneys for Defendants
SU HO MIN
1 Metrotech Center
Brooklyn, New York 11201
(212) 857-8230
To: LAW OFFICE OF ORIN J. COHEN
Attorneys for Plaintiff
KURT GORIN
1162 Victory Boulevard
Staten Island, New York 10301
(718) 448-2889
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Preview
... FILED: RICHMOND COUNTY CLERK 10/22/2018 11:26 AM INDEX NO. 151775/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 10/22/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X INDEX NO.: 151775/2016 KURT GORIN, Plaintiff, AFFIRMATION - against - IN OPPOSITJON SU HO MIN, Defendant(s). FILE NO.: 661025 CASE NO: 85142 BRENDON CASSELLA, 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, MORRISSEY & MOSKOVITS, P.C., attorneys for the defendant, SU HO MIN, 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 the Motion of plaintiff seeking an Order granting summary judgment in favor of plaintiff's on the issue of liabilityseeking an Order granting them summary judgment on the issue of liability. 3. This action arises out of a motor vehicle accident that occurred on July 3, 2015, at Narrows Road South in the County of Richmond, City and State of New York. SUMMARY JUDGMENT IS INAPPROPRIATE WHERE GENUlNE ISSUES OF MATERIAL FACT EXIST 4. Summary judgment is a drastic remedy because itdeprives the litigants of their day in Court and itshould only be empicyed 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 1 of 4 FILED: RICHMOND COUNTY CLERK 10/22/2018 11:26 AM INDEX NO. 151775/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 10/22/2018 material fact, summary judgment is not granted and a plenary trialis ordered. Goodman v. Goodman, 62 A.D.2d 939 (1st Dep't 1978). 6. Furthermore, movañt has the burden to offer evidence sufficient to eliminate any material issue of fact. Summary judgment willbe denied, even in the absence of cocosing papers. where plaintiff'smcving affidavits fail to meet the stringent evidentiary burden placed upon movant. Falk v. Gcedman, 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"); Cuqini 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); Schñeider 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 allthe 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 cidiñarily a question of fact to be determined by the jury. Foltis Inc. v. City of New York, 287 N.Y. 108; Sa|cmone v. Yellow Taxi Corp., 242 N.Y. 251. Furthermore, the questicñ 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. proof" 9. In the instant case, the moving papers and the "evidentiary submitted therewith, as pointed out herein, confirm rather than eliminate the existence of material questions of fact. 2 of 4 FILED: RICHMOND COUNTY CLERK 10/22/2018 11:26 AM INDEX NO. 151775/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 10/22/2018 10. The emergency doctrine applies when "those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with littleor no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decisica without weighing alternative courses of conduct, may not be neg|igent iftheir actions emergency." are reas0ñable and prudent in the context of the See Bello v. Transit Autharity of New York City, 12 A.D.3d 783 (2d Dep't 2004) citing to Caristo v. Sanzone. 96 N.Y.2d 172 and Rivera v. New York City Tr. Auth.. 77 N.Y.2d 322. 11. The defendant HO MIN SU testified that on July 3, 2015 he was involved in an automobile accident where he struck the vehicle in the rear. See page 7 lines 6-8 and page 9 lines 9-16. Mr. Su states that he struck the vehicle in front of him because he was blinded by the suns glare. See page 11 lines 7-10 and page 12 lines 7-21. Mr. Su was only bliñded by the suns glare immediate!y before the accideñt occurred. See page 11 lines 21-25 and page 12 lines 2-6. Mr. Su attempted was in the process of slowing down when the accident occurred. See page 12 lines 12-25. A copy of defendant HO MIN SU's depositioñ transcript is annexed hereto as "Exhibit A". 12. In this case, there is a basis for a jury to find defendant HO MIN SU did not aparate his vehicle in a negligent way as there was no way he could have anticipated being blinded by the sun's glare immediately before the accident. In this case defendant HO MlN SU acted as a reasonably prudent person by slowing down when his vision was impacted. At the very least, there exist issues of fact about whether the defendant could have avoided the ccilisicñ. Such issues are sufficient to preclude summary judgment in the instant case. 3 of 4 FILED: RICHMOND COUNTY CLERK 10/22/2018 11:26 AM INDEX NO. 151775/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 10/22/2018 WHEREFORE, for allthe reasons aforesaid, defendant respectfully requests that this plaintiffs' Court issue an Order denying Motioñ for summary judgment as to liabilityand granting such other and further reliefas to this Court may seem just and proper. Dated: Brooklyn, New York October 22, 2018 Yours, etc., BAKER, McEVOY, MORRISSEY & MOSKOVITS P.C. By: BRENDON CASSELLA Attorneys for Defendants SU HO MIN 1 Metrotech Center Brooklyn, New York 11201 (212) 857-8230 To: LAW OFFICE OF ORIN J. COHEN Attorneys for Plaintiff KURT GORIN 1162 Victory Boulevard Staten Island, New York 10301 (718) 448-2889 4 of 4