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FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
X
LUBA STILLMAN,
Index No. 150473/15
Plaintiff,
DCM PART 3
-against-
HON. DESMOND A. GREEN
FRANK LOMBARDO,
NOTICE OF MOTION
Defendant. FOR SUMMARY JUDGMENT
X
FRANK LOMBARDO, FEES
CI STIP/SETTLEMENT
Third-Party Plaintiff, VI MOTION 6 5
CI DISCONTINUANCE
-against-
MICHAEL STILLMAN,
Third-Party Defendant.
X
PLEASE TAKE NOTICE that upon the affirmation of Rebecca S. Casas, Esq. dated
February 14, 2017, and upon all the pleadings and proceedings had herein, the undersigned
will cross move this Court at DCM Part 3, at the Courthouse located at 26 Central Avenue,
Room 340, Staten Island, New York, on March 29, 2017, at 9:30 a.m., for an order pursuant
to C.P.L.R. 3212, dismissing the complaint and all cross claims and granting summary
judgment to the moving Defendant/Third-Party Plaintiff FRANK LOMBARDO, and for such
other and further relief as the court may deem just and proper.
PLEASE TAKE FURTHER NOTICE that answering affidavits, if any must be
served at least seven (7) days prior to the return date of this motion.
DOCUMENT :re 990541 5
21—FILE MOTION
150473/15
Q3/03/2017 10:57:49 A.M.
RECEIPT: 9504 FEE: $45.00
RICHMOND COUNTY CLERK 1 of 114
FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015
NYSCEF DOC. NO. 23 RECEIVED NYSCEF:
I. 03/07/2017
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FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017
PLEASE TAKE FURTHER NOTICE that, in the event that service is not made on
the undersigned as set forth in the preceding paragraph, the undersigned will object to the
submission and consideration of such opposing affidavits, if any. [See Mosheveva v.
Distefano 288 A.D.2d 448, 733 N.Y.S.2d 499 (2d Dept. 2001)].
DATED: Brooklyn, New York
February 14, 2017
Yours, etc.,
LAW OFFICE OF KAREN L. LAWRENCE
•
By: /j
Rebecca S. Casas
Attorney for Defendant/Third-Party Plaintiff
FRANK LOMBARDO
4 Metrotech Center, Suite 2000
Brooklyn, New York 11201
Telephone: 718-451-7157
Our File No. 0363936824.1
TO: LAW OFFICE OF YURIY PRAKHIN, PC
Attorneys for the Plaintiff
LUBA STILLMAN
1883 86th Street, 2nd Floor
Brooklyn NY 11214
218-946-5099
File No.: SK 04042015
LAW OFFICES OF HARRIS, KING, FODERA & CORREIA
Third Party Defendant
MICHAEL STILLMAN
One Battery Park Plaza, 29th Floor
New York, NY 10004
2
3 of 114
FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017
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FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
X
LUBA STILLMAN,
Index No. 150473/15
Plaintiff,
AFFIRMATION IN SUPPORT OF
-against- • MOTION FOR SUMMARY
JUDGMENT
FRANK LOMBARDO,
Defendant.
X
FRANK LOMBARDO,
Third-Party Plaintiff,
-against-
MICHAEL STILLMAN,
Third-Party Defendant.
X
Rebecca S. Casas, an attorney admitted to practice in the courts of this State, affirms the
following pursuant to C.P.L.R. 2106:
I am associated with the LAW OFFICES OF KAREN L. LAWRENCE,
attorneys for the Defendant/Third-Party Plaintiff FRANK LOMBARDO ("Mr. Lombardo").
I make this affirmation in support of this motion for summary judgment pursuant to C.P.L.R.
3212, dismissing the complaint and granting summary judgment to the Defendant/Third-Party
Plaintiff as he bears no liability for the subject accident.
The subject action was commenced by a Summons and Verified Complaint
filed on May 27,2015. (Eihibit A). Defendant/Third-Party Plaintiff FRANK LOMBARDO,
appeared in this action by service of a Verified Answer dated June 16, 2015. (Exhibit B).
Defendant/Third-Party Plaintiff FRANK LOMBARDO served a Third Party Summons and
2
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017
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Complaint dated April 4, 2016. (Exhibit C). Third-Party Defendant MICHAEL STILLMAN
appeared in this action by service of an Answer to Third Party Complaint dated September 9,
2016. (Exhibit D).
3. Annexed hereto for the Court's consideration are the following documents:
Exhibit "A" Plaintiff's Summons and Verified Complaint
Exhibit "B" Defendant's Answer
Exhibit "C" Third-Party Plaintiff's Summons and Verified
Complaint
Exhibit "D" Third-Party Defendant's Answer
Exhibit "E" Plaintiff's Verified Bill of Particulars
Exhibit "F" Police Report and Certified MV-104
Exhibit "G" EBT Transcript of Defendant/Third-Party Plaintiff
FRANK LOMBARDO
Exhibit "H" EBT Transcript of Non-Party Witness Police Officer
Richard Velez
Exhibit "I" EBT Transcript of Third-Party Defendant
MICHAEL STILLMAN
Exhibit "J" EBT Transcript of Plaintiff LUBA STILLMAN
Exhibit "K" Color Photographic Images taken by Mr. Lombardo
at the scene of the accident
4. In her complaint, Plaintiff LUBA STILLMAN ("Ms. Stillman") alleges
personal injuries as a result of a two car accident which occurred on April 4,2015 in a
parking lot in front of MOO Amboy Road, Staten Island, New York. (See Exhibit A and
Exhibit F). Third-Party Defendant MICHAEL STILLMAN ("Mr. Stillman") was the driver
of a motor vehicle in which the Plaintiff was a passenger. Mr. Lombardo had backed his
vehicle out of his parking space, was in the process of leaving and had switched his vehicle
into drive, when he was hit in the rear of his vehicle by the rear of Mr. Stilhnan's vehicle,
which had just begun to back out of his parking space. Based on the following facts and well-
established legal precedent, the Defendant/Third-Party Plaintiff Mr. Lombardo is free from
negligence as a matter of law. As a result, the Mr. Lombardo is entitled to summary judgment
dismissing the complaint.
3
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Evidence and Testimony
Police Report and Certified MV-104: (Exhibit F)
The following is written in the "Accident Description" section of the attached
Certified Police Report: ,
"At time and place of occurrence driver of veh # 1 [Mr. Stillman] states while
reversing out of the parking spot he accidentally struck veh # 2. Driver of veh # 2 states while
reversing from his parking spot veh # 1 struck him. PO did not witness." Mr. Stillman was
cited with a "4" for "Driver Inattention/Distraction" while Mr. Lombardo did not receive any
citations.
Unfortunately, a copy of the certified police report is not on file at the DMV headquarters in
Albany, New York. However, as is later detailed, the Police Officer who responded to the
scene verified the information in the police report as an exhibit during his examination before
trial. Additionally, Mr. Lombardo 's certified MV-104, which is on file, details the exact same
series of events as is listed in the police report.
EBT Transcript of Defendant/Third-Party Plaintiff FRANK LOMBARDO (Exhibit G):
On April 26, 2016, Mr. Lombardo testified at an Examination Before Trial
that he was involved in an accident that occurred just before 11:00 in the morning on April 4,
2015. (9:12; 9:16-17). The weather was sunny and the roads were dry. (9:19-21). There were
two vehicles involved. (10:19-20). Mr. Lombardo was driving a gray 2008 Toyota
Highlander. (10:22; 11:2). The other vehicle was a white Lexus SUV. (12:8-10). The accident
occurred in a shopping mall parking lot off of Amboy Road. (12:12-13). The parking lot is
laid out so that there are cars parked on either side with a two way thoroughfare between the
two lanes of parked can. (14:15-18).
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At the time that the accident occurred, Mr. Lombardo had just "pulled out,
backed out of a parking spot." (13:11-12). He was changing his gear to drive and was
stopped. (13:14-15). Neither of the vehicles immediately to his left or his right were involved
in the accident. (14:5-6). At the rime of the impact, no portion of his vehicle was still within
the yellow parking space lines. (14:10). His entire vehicle was in the travel space in between
the parking rows. (14:12):
At the moment of impact, Mr. Lombardo's foot was on the brake. (17:21). His
foot had been on the brake for approximately two to three seconds as he had just shifted
gears. (17:24-25). At the moment of impact, his car had been shifted into drive from reverse.
(18:5; 19:22). Mr. Lombardo did not see the other vehicle involved at any rime prior to the
impact. (18:8). As he had been backing out of the parking space, his foot was on the brake,
gently coming out into traffic. (18:20-21). His foot was not on the gas pedal. (18:23). The
front of his vehicle was turned to the left before impact. (19:18-19). At the time of impact, his
vehicle was at an angle. (20:9-10). At any time prior to the impact, Mr. Lombardo did not
hear any noises, like a horn honking. (20:17). As he had been backing out, Mr. Lombardo was
looking over his shoulder towards the back window of the car. (20:24-25). He became aware
of an impact because he felt it. (21:5). There was one impact. (21:18). He described the
impact as "soft." (21:8). The middle rear bumper of the other vehicle hit the driver's side rear
corner of Mr. Lombardo's vehicle. (21:11-13). Mr. Lombardo's body moved forward and to
the right as a result of the impact. (22:5).
After the impact, Mr. Lombardo put his car in park. (23:3). He left the vehicle
exactly where it was. (23:9). Mr. Lombardo observed damage to the bumper, rear driver's
side bumper, and fender comer. (23:16-17). The driver of the other vehicle was Third Party
5
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NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017
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Defendant MICHAEL STILLMAN. (24:5). They spoke at the scene. (24:10). Mr. Stillman
told Mr. Lombardo that he was "not quite sure how this happened as I normally have some
sort of indicator in my car that tells me there is an object behind me" and whether or not "we
should be calling the police and that I should be thinking about putting the car back in its spot
and saying it was a hit and run." (25:2-6; 25:14-17). Mr. Lombardo called the police. (26:4).
They arrived ten to fifteen minutes later. (26:6). Mr. Lombardo called the police twice
because he was concerned as Mr. Stillman was walkin
Preview
FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X LUBA STILLMAN, Index No. 150473/15 Plaintiff, DCM PART 3 -against- HON. DESMOND A. GREEN FRANK LOMBARDO, NOTICE OF MOTION Defendant. FOR SUMMARY JUDGMENT X FRANK LOMBARDO, FEES CI STIP/SETTLEMENT Third-Party Plaintiff, VI MOTION 6 5 CI DISCONTINUANCE -against- MICHAEL STILLMAN, Third-Party Defendant. X PLEASE TAKE NOTICE that upon the affirmation of Rebecca S. Casas, Esq. dated February 14, 2017, and upon all the pleadings and proceedings had herein, the undersigned will cross move this Court at DCM Part 3, at the Courthouse located at 26 Central Avenue, Room 340, Staten Island, New York, on March 29, 2017, at 9:30 a.m., for an order pursuant to C.P.L.R. 3212, dismissing the complaint and all cross claims and granting summary judgment to the moving Defendant/Third-Party Plaintiff FRANK LOMBARDO, and for such other and further relief as the court may deem just and proper. PLEASE TAKE FURTHER NOTICE that answering affidavits, if any must be served at least seven (7) days prior to the return date of this motion. DOCUMENT :re 990541 5 21—FILE MOTION 150473/15 Q3/03/2017 10:57:49 A.M. RECEIPT: 9504 FEE: $45.00 RICHMOND COUNTY CLERK 1 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: I. 03/07/2017 , - -•. t '' 1' : r•-• 41:1- 1,1•L 0, , -*1 1- _ ,, 4 . .r. - •ir ' . Oh ..1.3-.11 f L- . 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NO. 23 RECEIVED NYSCEF: 03/07/2017 PLEASE TAKE FURTHER NOTICE that, in the event that service is not made on the undersigned as set forth in the preceding paragraph, the undersigned will object to the submission and consideration of such opposing affidavits, if any. [See Mosheveva v. Distefano 288 A.D.2d 448, 733 N.Y.S.2d 499 (2d Dept. 2001)]. DATED: Brooklyn, New York February 14, 2017 Yours, etc., LAW OFFICE OF KAREN L. LAWRENCE • By: /j Rebecca S. Casas Attorney for Defendant/Third-Party Plaintiff FRANK LOMBARDO 4 Metrotech Center, Suite 2000 Brooklyn, New York 11201 Telephone: 718-451-7157 Our File No. 0363936824.1 TO: LAW OFFICE OF YURIY PRAKHIN, PC Attorneys for the Plaintiff LUBA STILLMAN 1883 86th Street, 2nd Floor Brooklyn NY 11214 218-946-5099 File No.: SK 04042015 LAW OFFICES OF HARRIS, KING, FODERA & CORREIA Third Party Defendant MICHAEL STILLMAN One Battery Park Plaza, 29th Floor New York, NY 10004 2 3 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 • . • r1Z- 1' z • •.• 17-.-4• • _ 44r!• • A. -L. n :171- . 11? I rtiC •-- 4 •• `'',-A 4 i•MI 'rEl N, Li..,_ ., •- , -1'). • 4z• _.17 • Ir -V.' • *7 1._ ' , • .41 1,- .i -,.•ri rd. i6_ _ p i .n:TriAl . 4..=411.1.r • ••• fie f$4'qt. ' • I-- . ' ' ,L. 5-I • •, r: . ' E. rla& " ..-••• *IT .i.r '. $ Ar',11. i_ 4- . . 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I -1 •• • I, _ • " - eatte ii" , , P: • • " , • „I .1, • _e 41'-̀\ , "iri l -• - L? ,, • !•,_••: • tII , --_, c s, 4 rt4', -I a ' "1 • l" • , II. • • id ; 4 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND X LUBA STILLMAN, Index No. 150473/15 Plaintiff, AFFIRMATION IN SUPPORT OF -against- • MOTION FOR SUMMARY JUDGMENT FRANK LOMBARDO, Defendant. X FRANK LOMBARDO, Third-Party Plaintiff, -against- MICHAEL STILLMAN, Third-Party Defendant. X Rebecca S. Casas, an attorney admitted to practice in the courts of this State, affirms the following pursuant to C.P.L.R. 2106: I am associated with the LAW OFFICES OF KAREN L. LAWRENCE, attorneys for the Defendant/Third-Party Plaintiff FRANK LOMBARDO ("Mr. Lombardo"). I make this affirmation in support of this motion for summary judgment pursuant to C.P.L.R. 3212, dismissing the complaint and granting summary judgment to the Defendant/Third-Party Plaintiff as he bears no liability for the subject accident. The subject action was commenced by a Summons and Verified Complaint filed on May 27,2015. (Eihibit A). Defendant/Third-Party Plaintiff FRANK LOMBARDO, appeared in this action by service of a Verified Answer dated June 16, 2015. (Exhibit B). Defendant/Third-Party Plaintiff FRANK LOMBARDO served a Third Party Summons and 2 5 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 • J. • • • Ii 6 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 Complaint dated April 4, 2016. (Exhibit C). Third-Party Defendant MICHAEL STILLMAN appeared in this action by service of an Answer to Third Party Complaint dated September 9, 2016. (Exhibit D). 3. Annexed hereto for the Court's consideration are the following documents: Exhibit "A" Plaintiff's Summons and Verified Complaint Exhibit "B" Defendant's Answer Exhibit "C" Third-Party Plaintiff's Summons and Verified Complaint Exhibit "D" Third-Party Defendant's Answer Exhibit "E" Plaintiff's Verified Bill of Particulars Exhibit "F" Police Report and Certified MV-104 Exhibit "G" EBT Transcript of Defendant/Third-Party Plaintiff FRANK LOMBARDO Exhibit "H" EBT Transcript of Non-Party Witness Police Officer Richard Velez Exhibit "I" EBT Transcript of Third-Party Defendant MICHAEL STILLMAN Exhibit "J" EBT Transcript of Plaintiff LUBA STILLMAN Exhibit "K" Color Photographic Images taken by Mr. Lombardo at the scene of the accident 4. In her complaint, Plaintiff LUBA STILLMAN ("Ms. Stillman") alleges personal injuries as a result of a two car accident which occurred on April 4,2015 in a parking lot in front of MOO Amboy Road, Staten Island, New York. (See Exhibit A and Exhibit F). Third-Party Defendant MICHAEL STILLMAN ("Mr. Stillman") was the driver of a motor vehicle in which the Plaintiff was a passenger. Mr. Lombardo had backed his vehicle out of his parking space, was in the process of leaving and had switched his vehicle into drive, when he was hit in the rear of his vehicle by the rear of Mr. Stilhnan's vehicle, which had just begun to back out of his parking space. Based on the following facts and well- established legal precedent, the Defendant/Third-Party Plaintiff Mr. Lombardo is free from negligence as a matter of law. As a result, the Mr. Lombardo is entitled to summary judgment dismissing the complaint. 3 7 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 • • • II • lv I • • • • • • 8 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 Evidence and Testimony Police Report and Certified MV-104: (Exhibit F) The following is written in the "Accident Description" section of the attached Certified Police Report: , "At time and place of occurrence driver of veh # 1 [Mr. Stillman] states while reversing out of the parking spot he accidentally struck veh # 2. Driver of veh # 2 states while reversing from his parking spot veh # 1 struck him. PO did not witness." Mr. Stillman was cited with a "4" for "Driver Inattention/Distraction" while Mr. Lombardo did not receive any citations. Unfortunately, a copy of the certified police report is not on file at the DMV headquarters in Albany, New York. However, as is later detailed, the Police Officer who responded to the scene verified the information in the police report as an exhibit during his examination before trial. Additionally, Mr. Lombardo 's certified MV-104, which is on file, details the exact same series of events as is listed in the police report. EBT Transcript of Defendant/Third-Party Plaintiff FRANK LOMBARDO (Exhibit G): On April 26, 2016, Mr. Lombardo testified at an Examination Before Trial that he was involved in an accident that occurred just before 11:00 in the morning on April 4, 2015. (9:12; 9:16-17). The weather was sunny and the roads were dry. (9:19-21). There were two vehicles involved. (10:19-20). Mr. Lombardo was driving a gray 2008 Toyota Highlander. (10:22; 11:2). The other vehicle was a white Lexus SUV. (12:8-10). The accident occurred in a shopping mall parking lot off of Amboy Road. (12:12-13). The parking lot is laid out so that there are cars parked on either side with a two way thoroughfare between the two lanes of parked can. (14:15-18). 4 9 of 114 INDEX ••• NO. 150473/2015 p=111111 FILED: RICHMOND COUNTY CLERK 03/03/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 •• • r - ' • • I • I .- d • • 10 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 At the time that the accident occurred, Mr. Lombardo had just "pulled out, backed out of a parking spot." (13:11-12). He was changing his gear to drive and was stopped. (13:14-15). Neither of the vehicles immediately to his left or his right were involved in the accident. (14:5-6). At the rime of the impact, no portion of his vehicle was still within the yellow parking space lines. (14:10). His entire vehicle was in the travel space in between the parking rows. (14:12): At the moment of impact, Mr. Lombardo's foot was on the brake. (17:21). His foot had been on the brake for approximately two to three seconds as he had just shifted gears. (17:24-25). At the moment of impact, his car had been shifted into drive from reverse. (18:5; 19:22). Mr. Lombardo did not see the other vehicle involved at any rime prior to the impact. (18:8). As he had been backing out of the parking space, his foot was on the brake, gently coming out into traffic. (18:20-21). His foot was not on the gas pedal. (18:23). The front of his vehicle was turned to the left before impact. (19:18-19). At the time of impact, his vehicle was at an angle. (20:9-10). At any time prior to the impact, Mr. Lombardo did not hear any noises, like a horn honking. (20:17). As he had been backing out, Mr. Lombardo was looking over his shoulder towards the back window of the car. (20:24-25). He became aware of an impact because he felt it. (21:5). There was one impact. (21:18). He described the impact as "soft." (21:8). The middle rear bumper of the other vehicle hit the driver's side rear corner of Mr. Lombardo's vehicle. (21:11-13). Mr. Lombardo's body moved forward and to the right as a result of the impact. (22:5). After the impact, Mr. Lombardo put his car in park. (23:3). He left the vehicle exactly where it was. (23:9). Mr. Lombardo observed damage to the bumper, rear driver's side bumper, and fender comer. (23:16-17). The driver of the other vehicle was Third Party 5 11 of 114 r 1Ir INDEX NO. WM= 150473/2015 FILED: RICHMOND COUNTY CLERK 03/03/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 •- • II • • • • 12 of 114 FILED: RICHMOND COUNTY CLERK 03/03/2017 INDEX NO. 150473/2015 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/07/2017 Defendant MICHAEL STILLMAN. (24:5). They spoke at the scene. (24:10). Mr. Stillman told Mr. Lombardo that he was "not quite sure how this happened as I normally have some sort of indicator in my car that tells me there is an object behind me" and whether or not "we should be calling the police and that I should be thinking about putting the car back in its spot and saying it was a hit and run." (25:2-6; 25:14-17). Mr. Lombardo called the police. (26:4). They arrived ten to fifteen minutes later. (26:6). Mr. Lombardo called the police twice because he was concerned as Mr. Stillman was walkin