On July 17, 2019 a
Motion-Secondary
was filed
involving a dispute between
Alan Stein,
Dina Stein,
and
David Goldberg,
for Torts - Motor Vehicle
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DINA STEIN and ALAN STEIN,
REPLY AFFIRMATION
Plaintiffs,
Index No. 157010/19
-against-
Hon. Adam Silvera
DAVID GOLDBERG,
Defendant.
JONATHAN R. RATCHIK, an attorney duly admitted to practice
law before the Courts of the State of New York, affirms the truth of the following
statements under the penalty of perjury:
1. I am a partner with the firm of KRAMER, DUNLEAVY &
RATCHIK, PLLC, attorneys for the plaintiffs DINA STEIN and ALAN STEIN in the
above-captioned action.
2. I am fully familiar with the facts and circumstances
hereinafter set forth, said knowledge having been gained through a review of the
file on this matter maintained at our offices.
3. This reply affirmation and the accompanying
Memorandum of Law are submitted in further support of the within motion which
seeks an Order, pursuant to CPLR Rule 3212, granting the plaintiff summary
judgment on the issue of liability, dismissing the defendant's affirmative defenses
sounding in culpable conduct / contributory negligence, and for such other relief
as the Court may deem just and proper.
1
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FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020
4. In his opposition defendant fails to raise any
papers,
material issues of fact that would warrant a denial of plaintiff's motion for
judgment on the issue of liability. Indeed, itis undisputed that at the
summary
96th designated
time of the incident, plaintiff was crossing West Street, within the
crosswalk and with the pedestrian signal in her favor, when she was struck by the
defendant's vehicle which was making a left turn from West End Avenue and
1 Given these undisputed plaintiff has
failed to yield the right-of-way. facts,
established her prima facie entitlement to summary judgment on the issue of
liability as a matter of law.
5. Defendant's argument that plaintiff somehow bears
responsibility for the happening of the incident because she was wearing a black
coat and allegedly said that she would wear white next time is laughable,
unsupported by any case law whatsoever, and ought to be disregarded by the
Court. As the operator of a motor vehicle, it was the defendant's responsibility to
see what there was to be seen under the circumstances, in this case a pedestrian
crossing the street within the crosswalk in a well-lit intersection (as evidenced by
the defendant's own nighttime photographs), and to yield the right-of-way. There
is no obligation on the part of a plaintiff pedestrian to wear white. To hold
otherwise would exonerate practically every motor vehicle operator who strikes a
1 Defense
counsel's claim that defendant's own recorded statement does not somehow constitute
an admission against interest is absurd. In his defendant does not disavow portion
affidavit, any
of his statement or claim that itis not truthful and accurate. That defendant thought he was
speaking with an investigator from his insurance company instead of an investigator hired by
plaintiff's counsel lends to make his statement more, not credible.
less,
2
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FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020
pedestrian in Manhattan at night (where people customarily wear dark clothing,
including most of the people depicted in the defendant's own photographs). The
defendant's inattention was the sole proximate cause of the incident and nothing
plaintiff said following the incident changes that fact.
allegedly
6. Equally without merit is defendant's nonsensical
"potentially"
argument that plaintiff did not exercise reasonable care for not
looking forwards while crossing the street. There is no evidence that plaintiff was
not looking forward while she was crossing the street. Nor did the defendant even
make this preposterous claim in his affidavit! Rather, it appears the claim is
nothing more than wild attorney conjecture and speculation. Before crossing
96th
West street, plaintiff looked both ways for oncoming vehicles, including any
would West 96th .
vehicles that be turning onto street from West End Avenue. She
only stepped off the curb when she believed itwas reasonably safe to do so and
crossed the street within the crosswalk and with the pedestrian signal in her favor.
Under these circumstances, there is no valid line of which a rational
reasoning by
trier of fact could conclude that she did not exercise reasonable care under the
circumstances or otherwise bears fault for the of the incident.
any happening
7. Finally, defendant's claim that plaintiff's motion is
somehow premature because depositions have not yet been held has been
repeatedly rejected by the Appellate Division as grounds upon which to a
deny
motion for judgment. This holds true as no
summary particularly where, here,
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FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020
evidentiary basis is made to suggest that additional discovery might lead to
relevant evidence.
8. Facts essential to justify opposition to plaintiff's motion
are not within the exclusive knowledge and control of the plaintiff. As the
operator of the motor vehicle which struck plaintiff, defendant is already in
possession of the facts necessary to oppose plaintiff's motion. Defendant's failure
to identify any such facts in his affidavit conclusively establishes that no such
facts exist and counsel's mere hope that evidence sufficient to defeat plaintiff's
motion may be uncovered by additional discovery is an insufficient basis for
denying her motion.
WHEREFORE, based upon the foregoing, plaintiffs respectfully
request that the Court grant the within motion for summary judgment in its
entirety, granting plaintiffs summary judgment on the issue of liability and
dismissing the defendant's affirmative defenses in comparative fault /
sounding
contributory negligence, and for such other relief as the Court may deem just and
proper.
Dated: New York, New York
January 30, 2020
JO R. RATCHIK
4
4 of 4
Document Filed Date
January 30, 2020
Case Filing Date
July 17, 2019
Category
Torts - Motor Vehicle
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Preview
FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DINA STEIN and ALAN STEIN, REPLY AFFIRMATION Plaintiffs, Index No. 157010/19 -against- Hon. Adam Silvera DAVID GOLDBERG, Defendant. JONATHAN R. RATCHIK, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following statements under the penalty of perjury: 1. I am a partner with the firm of KRAMER, DUNLEAVY & RATCHIK, PLLC, attorneys for the plaintiffs DINA STEIN and ALAN STEIN in the above-captioned action. 2. I am fully familiar with the facts and circumstances hereinafter set forth, said knowledge having been gained through a review of the file on this matter maintained at our offices. 3. This reply affirmation and the accompanying Memorandum of Law are submitted in further support of the within motion which seeks an Order, pursuant to CPLR Rule 3212, granting the plaintiff summary judgment on the issue of liability, dismissing the defendant's affirmative defenses sounding in culpable conduct / contributory negligence, and for such other relief as the Court may deem just and proper. 1 1 of 4 FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020 4. In his opposition defendant fails to raise any papers, material issues of fact that would warrant a denial of plaintiff's motion for judgment on the issue of liability. Indeed, itis undisputed that at the summary 96th designated time of the incident, plaintiff was crossing West Street, within the crosswalk and with the pedestrian signal in her favor, when she was struck by the defendant's vehicle which was making a left turn from West End Avenue and 1 Given these undisputed plaintiff has failed to yield the right-of-way. facts, established her prima facie entitlement to summary judgment on the issue of liability as a matter of law. 5. Defendant's argument that plaintiff somehow bears responsibility for the happening of the incident because she was wearing a black coat and allegedly said that she would wear white next time is laughable, unsupported by any case law whatsoever, and ought to be disregarded by the Court. As the operator of a motor vehicle, it was the defendant's responsibility to see what there was to be seen under the circumstances, in this case a pedestrian crossing the street within the crosswalk in a well-lit intersection (as evidenced by the defendant's own nighttime photographs), and to yield the right-of-way. There is no obligation on the part of a plaintiff pedestrian to wear white. To hold otherwise would exonerate practically every motor vehicle operator who strikes a 1 Defense counsel's claim that defendant's own recorded statement does not somehow constitute an admission against interest is absurd. In his defendant does not disavow portion affidavit, any of his statement or claim that itis not truthful and accurate. That defendant thought he was speaking with an investigator from his insurance company instead of an investigator hired by plaintiff's counsel lends to make his statement more, not credible. less, 2 2 of 4 FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020 pedestrian in Manhattan at night (where people customarily wear dark clothing, including most of the people depicted in the defendant's own photographs). The defendant's inattention was the sole proximate cause of the incident and nothing plaintiff said following the incident changes that fact. allegedly 6. Equally without merit is defendant's nonsensical "potentially" argument that plaintiff did not exercise reasonable care for not looking forwards while crossing the street. There is no evidence that plaintiff was not looking forward while she was crossing the street. Nor did the defendant even make this preposterous claim in his affidavit! Rather, it appears the claim is nothing more than wild attorney conjecture and speculation. Before crossing 96th West street, plaintiff looked both ways for oncoming vehicles, including any would West 96th . vehicles that be turning onto street from West End Avenue. She only stepped off the curb when she believed itwas reasonably safe to do so and crossed the street within the crosswalk and with the pedestrian signal in her favor. Under these circumstances, there is no valid line of which a rational reasoning by trier of fact could conclude that she did not exercise reasonable care under the circumstances or otherwise bears fault for the of the incident. any happening 7. Finally, defendant's claim that plaintiff's motion is somehow premature because depositions have not yet been held has been repeatedly rejected by the Appellate Division as grounds upon which to a deny motion for judgment. This holds true as no summary particularly where, here, 3 3 of 4 FILED: NEW YORK COUNTY CLERK 01/30/2020 07:32 PM INDEX NO. 157010/2019 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/30/2020 evidentiary basis is made to suggest that additional discovery might lead to relevant evidence. 8. Facts essential to justify opposition to plaintiff's motion are not within the exclusive knowledge and control of the plaintiff. As the operator of the motor vehicle which struck plaintiff, defendant is already in possession of the facts necessary to oppose plaintiff's motion. Defendant's failure to identify any such facts in his affidavit conclusively establishes that no such facts exist and counsel's mere hope that evidence sufficient to defeat plaintiff's motion may be uncovered by additional discovery is an insufficient basis for denying her motion. WHEREFORE, based upon the foregoing, plaintiffs respectfully request that the Court grant the within motion for summary judgment in its entirety, granting plaintiffs summary judgment on the issue of liability and dismissing the defendant's affirmative defenses in comparative fault / sounding contributory negligence, and for such other relief as the Court may deem just and proper. Dated: New York, New York January 30, 2020 JO R. RATCHIK 4 4 of 4