Preview
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
___-- - -_..----------------------------- ---X
FREDERICK REAVES, REPLY AFFIRMATION
Plaintiff, INDEX NO.: 150428/2019
- against- RETURNABLE: 7/26/19
MARC J. LUST, HON. ADAM SILVERA
Defendant.
--------------------------------------------------------X
STATE OF NEW YORK }
COUNTY OF SUFFOLK } ss.:
JONATHAN J. SARDELLI, 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. That I am the attorney for the Plaintiff in the above-entitled matter and, as such,
am fully familiar with the facts and circumstances heretofore had herein.
2. I respectfully submit this affirmation in reply to the Affinnation of Edward J.
Harrington, Esq., dated July 24, 2019, and in further support of Plaintiff's motion pursuant to
CPLR 3212.
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
SHOULD BE GRANTED AS A MATTER OF LAW
AS NO TRIABLE ISSUE OF FACT EXISTS
3. Mr. Harrington's Affirmation offers no sound arguments to distinguish the cases
cited in my earlier Affirmation of May 29, 2019. Without repeating all arguments previously
asserted, Vehicle and Traffic Law §1129(a) and 1180(a), as well as the cases of Ganibino,
Edney, Starace, Benyarko, Pappas, Leal, and Young provide overwhelming legal support for the
granting of Plaintiff s motion for summary judgment pursuant to CPLR 3212.
4. Plaintiff, FREDERICK REAVES, was the restrained passenger of a vehicle
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FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019
10"'
which was completely stopped for three to five seconds due to a red traffic on Avenue, when
it was struck in the rear by the vehicle which was owned and operated by Defendant, MARC J.
LUST.
5. This is precisely the situation that allows for the granting of suniñ1â1y judgment.
6. Mr. Harrington fails to provide an Affidavit from Defendant, MARC J. LUST,
setting forth a non-negligent explanation for the happening of the accident. Additionally,
Defendant, MARC J. LUST, failsto provide a reasonable excuse as to why he failed to properly
observe and maintain a reasonably safe distance from the vehicle directly in front of him, thereby
causing this rear-end collision. Consequently, Defendant clearly violated Vehicle and Traffic
Law §§1129(a) and 1180(a).
7. Therefore, in the instant action, Defendant, MARC J. LUST, is solely
respoñsible for this collision as he struck the vehicle, which contained Plaintiff, FREDERICK
REAVES, as a restrained passenger, in the rear thereby causing this rear-end collision, in
violation of VTL 1129(a) and 1180(a).
8. The Defendant, MARC J. LUST, failed to abide by VTL §1129(a) and §1180(a)
and cannot offer any excuse to rebut the inferruce of negligence.
9. There is no issue of fact, thus summary judgment is warrañted in favor of the
Plaintiff.
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FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019
WHEREFORE, it is respectfully requested that an Order be issued granting summaly
judgreest in favor of the Plaintiff, FREDERICK REAVES, and against the Defendant, MARC
J. LUST, on the issue of liability; together with such other and further relief as this Court may
deem just and proper.
Dated:Melville, New York
July 25, 2019
Yours, etc.,
JONAT . SARDELLI, ESQ.
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NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019
AFFIDAVIT OF SERVICE
STATE OF NEW YORK }
COUNTY OF SUFFOLK } ss.:
I, ASHLEY ASTLE, being duly sworn, depose and state: That I am not a party to this
action, am over 18 years of age, and reside in Melville, New York.
That on July 25, 2019, I served the within REPLY AFFIRMATION upon:
MORRIS DUFFY ALONSO & FALEY
Attorneys for Defendant
MARC J. LUST
22nd
101 Greenwich Street, Floor
New York, New York 10006
(212) 766-1888
the address designated by said party(s) or attorney(s) for that purpose:
[X] by depositing a true copy of the same, enclosed in a post-paid properly addressed
wrapper, VIA FIRST CLASS MAIL, in a post office depository under the exclusive
care of the United States Postal Service within the State of New York.
[ ] by depositing a true copy of the same, enclosed in a post-paid properly addressed
CERTIFIED MAIL/RETURN RECEIPT wrapper, in a post office depository under
the exclusive care of the United States Postal Service within the State of New York.
[ ] by dispatching a copy by overnight delivery via UPS OVERNIGHT MAIL to the
parties above named at the address so indicated.
[ ] by PERSONALLY delivering a true copy of same to each person above named at the
address so indicated. I knew each person mentioned and described in said papers a party
therein;
[ ] by transmitting a true copy of same to the parties above named by FAX transmission at
the facsimile number so designated by said parties.
Sworn to before me on this
25*
day of July 2019
TARY PUBLIC ASHLEY STLE
Janine M, C on
State
Public, of NewYork
Notary
Reg. No. 01006214210
in Suffolk
Qualified County
ExPires April18,
cornrnission
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FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
INDEX NO.: 150428/2019
FREDERICK REAVES,
Plaintiff,
- against -
MARC J. LUST,
Defendant.
REPLY AFFIRMATION
BRAGOLI & ASSOCIATES, P.C.
Attorneys for Plaintiff
FREDERICK REAVES
300 Broadhanew Road, Suite 100W
Melville, New York 11747
423-7755
(631)
ADMISSION OF SERVICE
Service of a copy of the within is hereby admitted.
Dated:
Attorney(s)for
NOTICE OF ENTRY
PLEASE TAKE NOTICE that the within is a (certified) true copy of an Order duly entered in
the office of the Clerk of the within named Court on
Dated: NOTICE OF SETTLEMENT
PLEASE TAKE NOTICE that an Order, of which the within is a true copy, will be
presented for settlement to the Hon. , one of the judges of the within named Court in
, New York, on
Dated:
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Preview
FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ___-- - -_..----------------------------- ---X FREDERICK REAVES, REPLY AFFIRMATION Plaintiff, INDEX NO.: 150428/2019 - against- RETURNABLE: 7/26/19 MARC J. LUST, HON. ADAM SILVERA Defendant. --------------------------------------------------------X STATE OF NEW YORK } COUNTY OF SUFFOLK } ss.: JONATHAN J. SARDELLI, 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. That I am the attorney for the Plaintiff in the above-entitled matter and, as such, am fully familiar with the facts and circumstances heretofore had herein. 2. I respectfully submit this affirmation in reply to the Affinnation of Edward J. Harrington, Esq., dated July 24, 2019, and in further support of Plaintiff's motion pursuant to CPLR 3212. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED AS A MATTER OF LAW AS NO TRIABLE ISSUE OF FACT EXISTS 3. Mr. Harrington's Affirmation offers no sound arguments to distinguish the cases cited in my earlier Affirmation of May 29, 2019. Without repeating all arguments previously asserted, Vehicle and Traffic Law §1129(a) and 1180(a), as well as the cases of Ganibino, Edney, Starace, Benyarko, Pappas, Leal, and Young provide overwhelming legal support for the granting of Plaintiff s motion for summary judgment pursuant to CPLR 3212. 4. Plaintiff, FREDERICK REAVES, was the restrained passenger of a vehicle 1 of 5 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019 10"' which was completely stopped for three to five seconds due to a red traffic on Avenue, when it was struck in the rear by the vehicle which was owned and operated by Defendant, MARC J. LUST. 5. This is precisely the situation that allows for the granting of suniñ1â1y judgment. 6. Mr. Harrington fails to provide an Affidavit from Defendant, MARC J. LUST, setting forth a non-negligent explanation for the happening of the accident. Additionally, Defendant, MARC J. LUST, failsto provide a reasonable excuse as to why he failed to properly observe and maintain a reasonably safe distance from the vehicle directly in front of him, thereby causing this rear-end collision. Consequently, Defendant clearly violated Vehicle and Traffic Law §§1129(a) and 1180(a). 7. Therefore, in the instant action, Defendant, MARC J. LUST, is solely respoñsible for this collision as he struck the vehicle, which contained Plaintiff, FREDERICK REAVES, as a restrained passenger, in the rear thereby causing this rear-end collision, in violation of VTL 1129(a) and 1180(a). 8. The Defendant, MARC J. LUST, failed to abide by VTL §1129(a) and §1180(a) and cannot offer any excuse to rebut the inferruce of negligence. 9. There is no issue of fact, thus summary judgment is warrañted in favor of the Plaintiff. 2 of 5 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019 WHEREFORE, it is respectfully requested that an Order be issued granting summaly judgreest in favor of the Plaintiff, FREDERICK REAVES, and against the Defendant, MARC J. LUST, on the issue of liability; together with such other and further relief as this Court may deem just and proper. Dated:Melville, New York July 25, 2019 Yours, etc., JONAT . SARDELLI, ESQ. 3 of 5 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019 AFFIDAVIT OF SERVICE STATE OF NEW YORK } COUNTY OF SUFFOLK } ss.: I, ASHLEY ASTLE, being duly sworn, depose and state: That I am not a party to this action, am over 18 years of age, and reside in Melville, New York. That on July 25, 2019, I served the within REPLY AFFIRMATION upon: MORRIS DUFFY ALONSO & FALEY Attorneys for Defendant MARC J. LUST 22nd 101 Greenwich Street, Floor New York, New York 10006 (212) 766-1888 the address designated by said party(s) or attorney(s) for that purpose: [X] by depositing a true copy of the same, enclosed in a post-paid properly addressed wrapper, VIA FIRST CLASS MAIL, in a post office depository under the exclusive care of the United States Postal Service within the State of New York. [ ] by depositing a true copy of the same, enclosed in a post-paid properly addressed CERTIFIED MAIL/RETURN RECEIPT wrapper, in a post office depository under the exclusive care of the United States Postal Service within the State of New York. [ ] by dispatching a copy by overnight delivery via UPS OVERNIGHT MAIL to the parties above named at the address so indicated. [ ] by PERSONALLY delivering a true copy of same to each person above named at the address so indicated. I knew each person mentioned and described in said papers a party therein; [ ] by transmitting a true copy of same to the parties above named by FAX transmission at the facsimile number so designated by said parties. Sworn to before me on this 25* day of July 2019 TARY PUBLIC ASHLEY STLE Janine M, C on State Public, of NewYork Notary Reg. No. 01006214210 in Suffolk Qualified County ExPires April18, cornrnission 4 of 5 FILED: NEW YORK COUNTY CLERK 07/25/2019 03:19 PM INDEX NO. 150428/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 07/25/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK INDEX NO.: 150428/2019 FREDERICK REAVES, Plaintiff, - against - MARC J. LUST, Defendant. REPLY AFFIRMATION BRAGOLI & ASSOCIATES, P.C. Attorneys for Plaintiff FREDERICK REAVES 300 Broadhanew Road, Suite 100W Melville, New York 11747 423-7755 (631) ADMISSION OF SERVICE Service of a copy of the within is hereby admitted. Dated: Attorney(s)for NOTICE OF ENTRY PLEASE TAKE NOTICE that the within is a (certified) true copy of an Order duly entered in the office of the Clerk of the within named Court on Dated: NOTICE OF SETTLEMENT PLEASE TAKE NOTICE that an Order, of which the within is a true copy, will be presented for settlement to the Hon. , one of the judges of the within named Court in , New York, on Dated: 5 of 5