Preview
FILED: NEW YORK COUNTY CLERK 11/21/2016 06:58 PM INDEX NO. 157939/2015
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/21/2016
CNIL COURT OF THE CITY OF NEW YORK
COL]-NTY OF NEW YORK
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MICHELLE BOWMAN and TREAVA BOV/MAN,
Plaintiff, AFFIRMATION IN
SUPPORT
-against-
Index No: 15793912015
MARION GREGG, GILBERT MORALES AND THE File No.: 2015-037945
CITY OF NEW YORK,
Defendants
DIANA MANAKHIMOVA, an attorney admitted to practice in the State of New
York and an Assistant Corporation Counsel of the City of New York affirms the truth of the
following under the penalties of perjury pursuant to Rule 2106 of the CPLR, upon information
and belief based upon the records maintained in this office:
1. This affirmation is submitted in support of the motion by Defendants,
THE CITY OF NEW YORK and GILBERT MORALES (hereinafter "the City"), for an Order:
in support of its motion which seeks an order pursuant to C.P.L.R. 3212, granting summary
judgment in favor of the City, dismissing the Complaint, and for such other and further relief as
this Court may deem just and proper.
FACTS AND PROCEDURAL HISTORY
2. This is an action for personal injuries allegedly sustained by Plaintiffs
MICHELLE BOWMAN and TREAVA BOV/MAN on March 14,2015. Plaintiffs claim that
they sustained physical injuries as a result of a motor vehicle accident involving the vehicle of
Defendant Marion Gregg, in which Plaintifß were passengers, and the vehicle of Captain Gilbert
Morales, when travelling at the intersection of West 132''d Street and Twelfth Avenue. Plaintiffs
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further allege that the accident was a result of the negligence of the City, specifically in
negligently operating the vehicle at a high speed, failing to properly use lights and sirens and
failing to obey traffic laws. See Notice of Claim, annexed hereto as Exhibit A.
3. Plaintiffs commenced this action with service of a Summons and Verified
Complaint on or about August 3,2015. See Summons and Verified Complaint, annexed hereto
as Exhibit B. On or about August 25,2015, the City joined issue by service of its Answer with
combined demands. See City's Answer, annexed hereto as Exhibit C. Further, on September
15m2015, the City amended its Answer and joined issue on behalf of Captain Gilbert Morales.
See City's Amended Answer, annexed hereto as Exhibit D.
4. Since then discovery has been ongoing, with two Compliance Conferences
held, during which Plaintiffs counsel stipulated to exchange HIPAA compliant authorizations
for any medical treatments Plaintiffs have received as a result of the previous motor vehicle
accidents they were involved in, as was testified to in their depositions. See Compliance
Conference Dated March 2, 2016 and Compliance Conference Dated June 1, 2016, annexed
hereto as Exhibit sE and F respectively; also see Transcript of Examination Before Trial of
Michelle Bowman, at pages 105-106, annexed hereto as Exhibit G, and Transcript of
Examination Before Trial of Treava Bowman, at pages 26-21, annexed hereto as Exhibit H. In
addition, Plaintiff s counsel agreed to exchange the files for the lawsuits resulting from the 2002
and 1993 motor vehicle accidents, or in the alternative the authorizations for same files. See
Exhibits E and F. Finally, Plaintiff was to resend all medical authorizations to all defendants, as
well as employment authorizations for Treava Bowman. See Exhibits E and F. Despite the fact
that discovery was incomplete, Plaintiffs served theirnotice of trial on June 22,2016. Plaintiffs
fìled their notice of trial with a certificate of readiness for trial, certifying the completion of
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necessary discovery proceedings. See Notice of Trial, annexed hereto as Exhibit I. As part of
Plaintiffs' notice of trial, Plaintiffs claimed that all discovery was complete and that discovery
proceedings now known to be necessary was completed. As a result, on July 11,2016 City had
to move to strike Plaintifß'Note of Issue. City's motion was granted by this Court on September
14,2016, at which time the Court also set out the course of remaining discovery, part of which
required the Plaintifß to appear for an Independent Medical Examination (hereinafter "IME") on
September 22,2016. See Order dated September 14,2016, annexed hereto as Exhibit J. The
day after issuance of the September 14,2016 order, your affrant received Plaintiffs' response to
the discovery demands. See Plaintiffs' response dated September 9, 2016, annexed hereto as
Exhibit K. A week later, on September 22,2016 - the day scheduled for Plaintiffs' IME -
Plaintifß refiled their Note of Issue, once again certifying discovery complete. See Note of Issue
dated September 22,2016, annexed hereto as Exhibit L.
5. On January 29, 2016 Defendants took the depositions of Plaintiffs
Michelle and Treava Bowman, with the continuation EBT of Ms. Treava Bowman done on May
10, 2016. See EBT transcript of Michelle Bowman and Treava Bowman, annexed hereto as
Exhibits G and H, respectively. Neither one of the Plaintiffs could remember any of the details
related to the actual impact, and neither one could shed any light as to what the traffic conditions
were like or whether Co-Defendant Gregg had the green light to proceed, etc. See Exhibit G at
pgs. 15, 19, and Exhibit H at pgs. 18-23.
6. On March 2,2016, City exchanged with all the parties its Response to the
Case Scheduling Order. See Response to the Case Scheduling Order dated March 2, 2076,
annexed hereto as Exhibit M. Annexed as part of the City's Response to the Case Scheduling
Order is the Police Accident Report filled out as a result of the Malch 14, 2015 accident. Id. In
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the repoft, under the section of "Accident DescriptiorVOfficer's Notes" itstates: "At T/P/O VII
states he was traveling straight ahead when VI unexpectedly attempted to make a right turn from
the left lane, side swiping his vehicle. VI states he was making a right turn from the left lane and
was not paying attention and did not see VII. Minimal damage to both vehicles." Id. Annexed as
part of the City's Response to the Case Scheduling Order is also the Police Department's
Collision Report, which lists under the section titled "Statement of Civilian Operator" the
following: "I was about to make a right turn, wasn't paying attention, didn't see the other car,
and hit him." Id. At his deposition, on }i4ay 17,2016, Co-Defendant Gregg testified as follows:
Q.: "'What was your first indication you were involved in a motor vehicle accident
that day?"
A.: "When making a right, I looked I my mirror and here come the car. He was
coming up. I said, oh, shucks. I tried to pull away, and I caught the wheel. I caught
the wheel on the left side, front wheel."
Q.: "Was there a traffic light at 732"d and 12th Avenue?"
A.: "Yes."
Q.: "And was that - - did you stop at that trafftc light? Was it red when you got
there? Green? Something else?"
A.: "It was green as I was approaching it."
Q.: "Okay. And this vehicle that you saw - - was it your side-view mirror or your - -"
A.: "Side-vie\il."
A.: "... I tried to pull a\¡r'ay,and then I struck the vehicle."
Q.: "You struck it?"
A.: "l hit the tire, the tire - - the front left tire on the driver's side."
Q.: "And what part of your vehicle came in contact with this other vehicle?"
A.: "My right front bumpet."
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Q.: "Immediately before this accident, did you hear any screeching of brakes or
honking ofhorns?"
A.: "No."
Q.: "At the moment of impact, would you say you were going about l0 to 15 miles
per hour?"
A.: "I'll say about that, because he lost his hubcap."
Q.: "Do you know what lane you were in, as you attempted to make this right turn - -
was it a right tum?"
A.: "Right turïì."
Q.: "Do you know what lane you were in?"
A.: "I was in - - again, to me it was a one-lane street."
Q.: "So, what divides the opposite flow of traffic? Was it a concrete median, was it a
double yellow lines?"
A.: "Double yellow line."
Q.: "When you were making this turn, were you very close to the double yellow
lines?"
A.: "Yes."
See Marion Gregg's EBT Transcript, annexed hereto as Exhibit E, at pgs. 26-32.
7.. When presented with the Police Accident Report filled out as a result of
the March 14,2015 accident, Co-Defendant Gregg testihed as follows:
Q.: "On the police report, where it says, accident description/officer's notes, it says,
vehicle one, which is Marion Gregg, it says, vehicle one states he was making a right turn from
the left lane. Iwas not paying attention and did not see vehicle number two, which was Gilbelt
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Morales. Minimal damage to both vehicles. Do you remember making a statement that you were
making a right tum from the left lane and not paying attention?"
A.: "l didn't see him."
MS. JEAN-BART: Answer his question. Do you remember saying that to the cop?
THE WITNESS: Yes.
Id. at pgs. 50-51.
8. The testimony above establishes, that Co-Defendant Gregg caused this
accident by attempting to make to make a right turn from a left lane, by failing to observe
vehicles following his own, and by proceeding through a turn at a dangerous rate of speed, which
prevented him from stopping in time to avoid the accident. Based on the testimony of Capt.
Morales, he was not responding to an emergency, nor was he violatin! any Vehicle and Traffic
laws.
Q.: "Vy'hen was the first time you saw that car, the other vehicle that was involved in
the accident, that day?"
A.: "'When it struck me."
Q.: "Did you see him at any time before he struck you?"
A.: "Not that I can recall."
Q.: "What part of you vehicle was involved in this accident; what portion of your
car that you were driving?"
A.: "The driver's side fender, front fender."
Q.: "'Was there any damage to your driver's side front fender as a result of this
accident?"
A.:"Yes."
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Q.: "Can you describe that damage to me?"
A.: "Minor damage, scratches."
Q.: "On which lane were you in when that contact happened?"
A.: "Right lane."
Q.: "Do you know what lane of traffic the other vehicle was in?"
A.: "The left lane."
Q.: "In the same direction as you?"
A.: "Correct."
Q.: "Do you remember which way you were looking immediately before the
impact; were you looking left, straight, right?"
A.: "Straight."
Q.: "Immediately before the impact, did you hear the sounding of homs or
screeching ofbreaks?"
A.: "No."
Q.: "Did you have a conversation with the other driver at that point?"
A.: "Yes."
Q.: "What was the sum and substance of that conversation?"
A.: "He apologized for hitting my car. He did not see me in the right lane and he
wanted to leave. He said he could not stay and he was going to a funeral."
MR. LIPETRI: "Did he say he didn't see you?"
THE WITNESS: "Yes."
Q.: "Earlier you said you told the police that the other driver was attempting to
make a right turn from the left lane; is that correct?"
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A.: "That's correct."
Q.: "And how do you know he was attempting to make a right turn from the left
lane?"
A.: "That's how he hit me."
Q.: "And as you saw his wheels attempting to turn right, immediately before the
impact, what did you do with respect to your vehicle?"
A.: "I tried to avoid him and swerve around him; that's why I believe the damage
was minimal."
See Capt. Morales' EBT Transcript, annexed hereto as Exhibit F, at pgs. 12-28.
ARGUMENT
9. As has been shown above, the Complaint should be dismissed against the
City because its actions were not the cause of Plaintiffs' injuries, thus meriting summary
judgment in favor of the City pursuant to C.P.L.R.32l2(b).
10. Pursuant to C.P.L.R.32I2(b), a court shall grant summary judgment if
"upon all papers and proof submitted, the cause of action or defense shall be established
sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
Once the proponent of a motion for summary judgment has made a prima facie showing of
entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to
produce evidentiary proof in admissible form sufficient to establish the existence of material
issues of fact whichrequire atrial of the action. Alvarez v. Prospect Hospital,68 N.Y.2d320,
32a 0e86); anv of New Y 49 N.Y.2d 557,562 (1980). A parly opposing a
motion for summary judgment may not rely upon conclusory allegations, but must present
evidentiary facts sufficient to raise a triable issue of fact. Mallad Construction Corp. v. CounС
Federal Savings & Loan Assoc., 32 N.Y.2d 285,290 (1973); Tobron Office Furniture Corp. v
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King'World Productions, 161 A.D.2d355,356 (1st Dep't 1990) (the opponent of a motion for
summary judgment must assemble, lay bare and reveal his proofs; merely setting forth factual or
legal conclusions is not sufficient); Polanco v. City of New York,244 A.D.2d322 (2d Dep't
1997) ("a shadowy semblance of an issue or bald conclusory allegations, even if believable, are
insuffrcient to defeat a motion for summary judgment"). "[M]ere speculation and
unsubstantiated allegations are insufhcient to raise a triable issue of fact." Judith M. v. Sisters of
Charity Hospital. 93 N.Y.2d 932 (teee).
1 1. The Appellate Division, First Department has observed that "timidity in
exercising the power [to grant summary judgment] in favor of a legitimate claim and against an
unmerited one, not only defeats the ends ofjustice in a specific case, but contributes to calendar
congestion which, in turn, denies to other suitors their rights to prompt determination of their
litigation." Disabato v. Soffes, 9 A.D2d 291,299 (lst Dep't 1959). As the Court of Appeals
recently recognized tn of New 2 N.Y.3d 648,65I (2004), because summary
judgment avoids needless litigation costs and delay, "[w]here appropriate, summary judgment is
a great benefit both to the parties and to the overburdened New York state trial courts."
12. It is well-established that in order to defeat a motion for summary
judgment, the opposing party must produce evidentiary proof in admissible form sufficient to
require a trial of material questions of fact. "[M]ere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient." Zuckerman v. City of New York, 49
N.Y.2d 557,562(19S0). Plaintiff may not manufacture issues of fact to preclude the granting of
summary judgment. A mere shadowy semblance of an issue of fact or bald, conclusory
allegations will not suffice to defeat a motion for summary judgment. Mallad Construction Corp.
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v. County Federal Savings & Loan Assoc., 32 N.Y.2d285,290 (1973); Morowitz v. Naughton,
150 A.D.2d 536 (2d Dep't 1989)
Point I
1. THE CITY IS ENTITLED TO
SUMMARY JUDGMENT BECAUSE THE
ACTIONS OF THE CITY \ryERE NOT THE
PROXIMATE CAUSE OF PLAINTIFFS'
INJURIES
13. The City respectfully submits that it is not a proper party to this action.
Plaintiffs allege that a that they sustained physical injuries as a result of a motor vehicle accident
involving the vehicle of Defendant Marion Gregg, in which Plaintiffs were passengers, and the
'West
vehicle of Captain Gilbert Morales, when travelling at the intersection of 132nd Street and
Twelfth Avenue. Plaintiffs further allege that the accident was a result of the negligence of the
City, specifically in negligently operating the vehicle at a high speed, failing to properly use
lights and sirens and failing to obey traffrc laws. See Notice of Claim, annexed hereto as Exhibit
A. However, based on the testimony given by both Plaintiffs, Co-Defendant Marion Gregg
(hereinafter "Co-Defendant Gregg") and Defendant Captain Gilbert Morales (hereinafter "Capt.
Morale"), municipal Defendants are not a proper party to this action, as there is no showing that
actions of the City were the proximate cause of Plaintifß' injuries. Plaintiffs' mere allegations
and speculative testimony, with nothing more, is insufficient to defeat the City's motion for
summary judgment. To establish a prima facie case of negligence against the City, a plaintiff
must demonstrate that the City (a) owed a duty, (b) breached the duty, owed, (c) that the breach
was the proximate cause of (d) the damages sustained. The City submits the witness testimony
and the documents exchanged as paft of discovery, as evidence that Plaintiffs injuries were not
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proximately caused by the City. Therefore, the Court should grant the City's motion for
summary judgment because Plaintiffs cannot establish a prima facie case of negligence against
the City.
14. In New York, a defendant's negligence must be the proximate cause of a
plaintifÎs injury in order for that defendant to be liable to plaintiff. See, O'Toole v. Greenberg,
64 N.Y.2d 427 (1985); Rochlin v. Alamo,679 N.Y.2d 75 (2d Dep't ß9\; Schumacher v.
Queens Countv Savings Bank,204 A.D.2d 526 (2d Dep't 1994). "Evidence of negligence is not
enough by itself to establish liability. It must also be proved that the negligence was the cause of
the event which produced the harm sustained by one who brings the complaint." Sheehan v. City
of New York. 40 N.Y.2d 496 (1976). Furthermore, "[m]ere speculation as to the cause of [an
accident], where there can be many causes, is fatal to a cause of action." Garvin v. Rosenberg,
204 A.D.2d 388 (2dDep't 1994); see also, Ziajka v. Pace Plumbing Corp.,254 A.D.2d 4S0 (2d
Dep't 1998); Amadio v. Pathmark Stores. Inc.,253 A.D.2d 834 (2d Dep't 1998); Skay v. Public
Library of Rockville Centre,238 4.D.2d397 (2d Dep't 1997); Lear)¡ v. North Shore University
Hospital, 218 A.D.2d 686 (2d Dep't 1995); Earle v. Channel Home Center, 158 A.D.2d 507 (2d
Dep't 1990).
15. Simply stated, in order to establish a prima facie case of negligence
against the City, Plaintiff must produce evidence that the City's alleged negligence was a
substantial cause of Plaintiffs' injuries. See, Felix 5l N.Y.2d
308 (1980); v. Altmans L 98 A.D.2d 468 (2d Dep't 1984);
see also Boltax v. Jo), Day Camp,67 N.Y.2d 617 (1985); Mclntyre v. Beaver Dam Winter
Spofs, 163 A.D.2d277 (2d Dep't 1990). To that end, Coufts have long held that, in determining
whether a defendant's conduct constitutes a substantial cause of the injury ploducing events,
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several factors should be considered. Specif,rcally, Courts must consider: (l) the aggregate
number of factors involved which contribute towards the harm and the effect which each has in
producing it1'(2) whether the defendant has created a continuous force active up to the time of
harm, or whether the situation was acted upon by other forces for which the defendant is not
responsible, and (3) the lapse of time. See, Mack, 98 A.D.2d at 666-67 .
16. It is evident that Plaintiffs' testimony cannot establish that the injuries
allegedly sustained by them were caused by any action on the part of the City. As was noted in
the Motor Vehicle Accident report, and later testified by Co-Defendant Gregg, it was Co-
Defendant Gregg's lack of attention that caused the accident - fact not at issue, as Co-Defendant
Gregg does not deny the correctness of the statements made by him to the police ofhcers who
f,rlled out the accident report. See, Exhibit E, at pgs. 50-51. Neither the Plaintiffs, nor Co-
Defendant Gregg claim that Capt. Morales did anything w.rong. Co-Defendant Gregg's attempt to
make a right turn from the left lane was in clear violation of the New York Vehicle and Traffic
Law $ I 160 (a), which states in relevant part:
"Required position and method of turning at intersections.
The driver of a vehicle intending to turn at an intersection shall do so as follows:
(a) Right turns. Both the approach for a right turn and a right turn shall be made
as close as practicable to the right hand curb or edge of the roadway or, where
travel on the shoulder or slope has been authorized, from the should or slope."
17. Based on this violation of the Vehicle and Traffic Law, Co-Defendant
Gregg clearly breached his due of care to the two Plaintifß in the present action, and was hence,
the sole proximate cause of their injuries. In Vainer v. DiSalvo, the Second Department lound
that violation of the Vehicle and Traffic Law constitutes negligence as a matter of law. See
Vainer v. Dialvo,79A.D.3d 1023 (2d Dep't 2010); see also, Botero v. Eraez,289 A.D.2d274 (2d
Dep't 2001) and Fenara v. Castro,283 A.D.2d392 (2d Dep't 2001).
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18. Numerous courts in this State have emphasized the importance of showing
that the defendant's alleged negligence was a substantial cause of the injury producing events.
For example, in Silver v. Sheraton-Smithtown Inn, l2l A.D.2d 7ll (2d Dep't 1986), an
altercation occurred in a cocktail lounge of an inn between the plaintiff and another patron. The
patron pushed plaintiff into a shelf with empty glasses, injuring plaintiff s arm and hand.
Plaintiff then sued the owner of the cocktail lounge on negligence grounds. The Court held that
"[a]s a matter of law, the altercation was the sole proximate cause of the injuries and the presence
of the shelf and glasses merely furnished the condition for the event's occurrence and was not
one of the causes of those injuries." Silver, 121 A.D.2d at71l. The Silver Court then dismissed
plaintiff s complaint with respect to the cocktail lounge owner's negligence as it determined that
any such alleged negligence was not the proximate cause if the plaintiff s injuries.
19. The City respectfully submits that the instant case presents circumstances
which merit summary judgment in favor of the City. Notably, Plaintiff cannot establish that the
City was the proximate cause of their injuries. For the foregoing reasons, the Court should grant
the City's motion for summary judgment finding that the City was not the proximate cause of
Plaintiffs' injuries, and dismiss the Complaint.
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WHEREFORE, it is respectfully requested that this Court grant City's motion rn
itq entirety, and for such other and further relief that this Court deems proper.
Dated New York, New York
November 21,2016
ZACHARY V/. CARTER
Corporation Counsel of the City of New York
Attomey for Defendant
THE CITY OF NEW YORK
100 Church Street
New York, New York 10007
By: Diana
Counsel
(2r2) 3 -3973
TO:
LOUIS C. FIABANE
Attorney for the Plaintiffs
304 East 49th Street
New York, NY 10017
LAV/ OFFICES OF JAMES J. TOOMEY
Attorney for Defendant MARION GREGG
485 Lexington Avenue, 7th Fl.
New York, NY 10017
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Index No. 15793912015
SUPREME COURT OF THE STATE OF NEV/ YORK
COI.]NTY OF NEV/ YORK
MICHELLE BOWMAN and TREAVA BOWMAN,
Plaintiff,
-against-
MARION GREGG, GILBERT MORALES AND THE CITY OF
NEV/ YORK,
Defendants.
AFFIRMATION IN SUPPORT OF MOTION
ZACHARY W. CARTER
Corporation Counsel of the City of New York
100 Church Street
New York, NY 10007
By: Diana Manakhimova
Tel.(212) 3s6-3973
LD File No.2015-037945
Due and timely service is hereby admítted.
New York, N.Y. ,2016
..Esq.
Attorney for
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Preview
FILED: NEW YORK COUNTY CLERK 11/21/2016 06:58 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/21/2016 CNIL COURT OF THE CITY OF NEW YORK COL]-NTY OF NEW YORK ------------- x MICHELLE BOWMAN and TREAVA BOV/MAN, Plaintiff, AFFIRMATION IN SUPPORT -against- Index No: 15793912015 MARION GREGG, GILBERT MORALES AND THE File No.: 2015-037945 CITY OF NEW YORK, Defendants DIANA MANAKHIMOVA, an attorney admitted to practice in the State of New York and an Assistant Corporation Counsel of the City of New York affirms the truth of the following under the penalties of perjury pursuant to Rule 2106 of the CPLR, upon information and belief based upon the records maintained in this office: 1. This affirmation is submitted in support of the motion by Defendants, THE CITY OF NEW YORK and GILBERT MORALES (hereinafter "the City"), for an Order: in support of its motion which seeks an order pursuant to C.P.L.R. 3212, granting summary judgment in favor of the City, dismissing the Complaint, and for such other and further relief as this Court may deem just and proper. FACTS AND PROCEDURAL HISTORY 2. This is an action for personal injuries allegedly sustained by Plaintiffs MICHELLE BOWMAN and TREAVA BOV/MAN on March 14,2015. Plaintiffs claim that they sustained physical injuries as a result of a motor vehicle accident involving the vehicle of Defendant Marion Gregg, in which Plaintifß were passengers, and the vehicle of Captain Gilbert Morales, when travelling at the intersection of West 132''d Street and Twelfth Avenue. Plaintiffs 1 of 15 further allege that the accident was a result of the negligence of the City, specifically in negligently operating the vehicle at a high speed, failing to properly use lights and sirens and failing to obey traffic laws. See Notice of Claim, annexed hereto as Exhibit A. 3. Plaintiffs commenced this action with service of a Summons and Verified Complaint on or about August 3,2015. See Summons and Verified Complaint, annexed hereto as Exhibit B. On or about August 25,2015, the City joined issue by service of its Answer with combined demands. See City's Answer, annexed hereto as Exhibit C. Further, on September 15m2015, the City amended its Answer and joined issue on behalf of Captain Gilbert Morales. See City's Amended Answer, annexed hereto as Exhibit D. 4. Since then discovery has been ongoing, with two Compliance Conferences held, during which Plaintiffs counsel stipulated to exchange HIPAA compliant authorizations for any medical treatments Plaintiffs have received as a result of the previous motor vehicle accidents they were involved in, as was testified to in their depositions. See Compliance Conference Dated March 2, 2016 and Compliance Conference Dated June 1, 2016, annexed hereto as Exhibit sE and F respectively; also see Transcript of Examination Before Trial of Michelle Bowman, at pages 105-106, annexed hereto as Exhibit G, and Transcript of Examination Before Trial of Treava Bowman, at pages 26-21, annexed hereto as Exhibit H. In addition, Plaintiff s counsel agreed to exchange the files for the lawsuits resulting from the 2002 and 1993 motor vehicle accidents, or in the alternative the authorizations for same files. See Exhibits E and F. Finally, Plaintiff was to resend all medical authorizations to all defendants, as well as employment authorizations for Treava Bowman. See Exhibits E and F. Despite the fact that discovery was incomplete, Plaintiffs served theirnotice of trial on June 22,2016. Plaintiffs fìled their notice of trial with a certificate of readiness for trial, certifying the completion of 2 2 of 15 necessary discovery proceedings. See Notice of Trial, annexed hereto as Exhibit I. As part of Plaintiffs' notice of trial, Plaintiffs claimed that all discovery was complete and that discovery proceedings now known to be necessary was completed. As a result, on July 11,2016 City had to move to strike Plaintifß'Note of Issue. City's motion was granted by this Court on September 14,2016, at which time the Court also set out the course of remaining discovery, part of which required the Plaintifß to appear for an Independent Medical Examination (hereinafter "IME") on September 22,2016. See Order dated September 14,2016, annexed hereto as Exhibit J. The day after issuance of the September 14,2016 order, your affrant received Plaintiffs' response to the discovery demands. See Plaintiffs' response dated September 9, 2016, annexed hereto as Exhibit K. A week later, on September 22,2016 - the day scheduled for Plaintiffs' IME - Plaintifß refiled their Note of Issue, once again certifying discovery complete. See Note of Issue dated September 22,2016, annexed hereto as Exhibit L. 5. On January 29, 2016 Defendants took the depositions of Plaintiffs Michelle and Treava Bowman, with the continuation EBT of Ms. Treava Bowman done on May 10, 2016. See EBT transcript of Michelle Bowman and Treava Bowman, annexed hereto as Exhibits G and H, respectively. Neither one of the Plaintiffs could remember any of the details related to the actual impact, and neither one could shed any light as to what the traffic conditions were like or whether Co-Defendant Gregg had the green light to proceed, etc. See Exhibit G at pgs. 15, 19, and Exhibit H at pgs. 18-23. 6. On March 2,2016, City exchanged with all the parties its Response to the Case Scheduling Order. See Response to the Case Scheduling Order dated March 2, 2076, annexed hereto as Exhibit M. Annexed as part of the City's Response to the Case Scheduling Order is the Police Accident Report filled out as a result of the Malch 14, 2015 accident. Id. In ) 3 of 15 the repoft, under the section of "Accident DescriptiorVOfficer's Notes" itstates: "At T/P/O VII states he was traveling straight ahead when VI unexpectedly attempted to make a right turn from the left lane, side swiping his vehicle. VI states he was making a right turn from the left lane and was not paying attention and did not see VII. Minimal damage to both vehicles." Id. Annexed as part of the City's Response to the Case Scheduling Order is also the Police Department's Collision Report, which lists under the section titled "Statement of Civilian Operator" the following: "I was about to make a right turn, wasn't paying attention, didn't see the other car, and hit him." Id. At his deposition, on }i4ay 17,2016, Co-Defendant Gregg testified as follows: Q.: "'What was your first indication you were involved in a motor vehicle accident that day?" A.: "When making a right, I looked I my mirror and here come the car. He was coming up. I said, oh, shucks. I tried to pull away, and I caught the wheel. I caught the wheel on the left side, front wheel." Q.: "Was there a traffic light at 732"d and 12th Avenue?" A.: "Yes." Q.: "And was that - - did you stop at that trafftc light? Was it red when you got there? Green? Something else?" A.: "It was green as I was approaching it." Q.: "Okay. And this vehicle that you saw - - was it your side-view mirror or your - -" A.: "Side-vie\il." A.: "... I tried to pull a\¡r'ay,and then I struck the vehicle." Q.: "You struck it?" A.: "l hit the tire, the tire - - the front left tire on the driver's side." Q.: "And what part of your vehicle came in contact with this other vehicle?" A.: "My right front bumpet." 4 4 of 15 Q.: "Immediately before this accident, did you hear any screeching of brakes or honking ofhorns?" A.: "No." Q.: "At the moment of impact, would you say you were going about l0 to 15 miles per hour?" A.: "I'll say about that, because he lost his hubcap." Q.: "Do you know what lane you were in, as you attempted to make this right turn - - was it a right tum?" A.: "Right turïì." Q.: "Do you know what lane you were in?" A.: "I was in - - again, to me it was a one-lane street." Q.: "So, what divides the opposite flow of traffic? Was it a concrete median, was it a double yellow lines?" A.: "Double yellow line." Q.: "When you were making this turn, were you very close to the double yellow lines?" A.: "Yes." See Marion Gregg's EBT Transcript, annexed hereto as Exhibit E, at pgs. 26-32. 7.. When presented with the Police Accident Report filled out as a result of the March 14,2015 accident, Co-Defendant Gregg testihed as follows: Q.: "On the police report, where it says, accident description/officer's notes, it says, vehicle one, which is Marion Gregg, it says, vehicle one states he was making a right turn from the left lane. Iwas not paying attention and did not see vehicle number two, which was Gilbelt ) 5 of 15 Morales. Minimal damage to both vehicles. Do you remember making a statement that you were making a right tum from the left lane and not paying attention?" A.: "l didn't see him." MS. JEAN-BART: Answer his question. Do you remember saying that to the cop? THE WITNESS: Yes. Id. at pgs. 50-51. 8. The testimony above establishes, that Co-Defendant Gregg caused this accident by attempting to make to make a right turn from a left lane, by failing to observe vehicles following his own, and by proceeding through a turn at a dangerous rate of speed, which prevented him from stopping in time to avoid the accident. Based on the testimony of Capt. Morales, he was not responding to an emergency, nor was he violatin! any Vehicle and Traffic laws. Q.: "Vy'hen was the first time you saw that car, the other vehicle that was involved in the accident, that day?" A.: "'When it struck me." Q.: "Did you see him at any time before he struck you?" A.: "Not that I can recall." Q.: "What part of you vehicle was involved in this accident; what portion of your car that you were driving?" A.: "The driver's side fender, front fender." Q.: "'Was there any damage to your driver's side front fender as a result of this accident?" A.:"Yes." 6 6 of 15 Q.: "Can you describe that damage to me?" A.: "Minor damage, scratches." Q.: "On which lane were you in when that contact happened?" A.: "Right lane." Q.: "Do you know what lane of traffic the other vehicle was in?" A.: "The left lane." Q.: "In the same direction as you?" A.: "Correct." Q.: "Do you remember which way you were looking immediately before the impact; were you looking left, straight, right?" A.: "Straight." Q.: "Immediately before the impact, did you hear the sounding of homs or screeching ofbreaks?" A.: "No." Q.: "Did you have a conversation with the other driver at that point?" A.: "Yes." Q.: "What was the sum and substance of that conversation?" A.: "He apologized for hitting my car. He did not see me in the right lane and he wanted to leave. He said he could not stay and he was going to a funeral." MR. LIPETRI: "Did he say he didn't see you?" THE WITNESS: "Yes." Q.: "Earlier you said you told the police that the other driver was attempting to make a right turn from the left lane; is that correct?" 7 7 of 15 A.: "That's correct." Q.: "And how do you know he was attempting to make a right turn from the left lane?" A.: "That's how he hit me." Q.: "And as you saw his wheels attempting to turn right, immediately before the impact, what did you do with respect to your vehicle?" A.: "I tried to avoid him and swerve around him; that's why I believe the damage was minimal." See Capt. Morales' EBT Transcript, annexed hereto as Exhibit F, at pgs. 12-28. ARGUMENT 9. As has been shown above, the Complaint should be dismissed against the City because its actions were not the cause of Plaintiffs' injuries, thus meriting summary judgment in favor of the City pursuant to C.P.L.R.32l2(b). 10. Pursuant to C.P.L.R.32I2(b), a court shall grant summary judgment if "upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Once the proponent of a motion for summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact whichrequire atrial of the action. Alvarez v. Prospect Hospital,68 N.Y.2d320, 32a 0e86); anv of New Y 49 N.Y.2d 557,562 (1980). A parly opposing a motion for summary judgment may not rely upon conclusory allegations, but must present evidentiary facts sufficient to raise a triable issue of fact. Mallad Construction Corp. v. CounС Federal Savings & Loan Assoc., 32 N.Y.2d 285,290 (1973); Tobron Office Furniture Corp. v 8 8 of 15 King'World Productions, 161 A.D.2d355,356 (1st Dep't 1990) (the opponent of a motion for summary judgment must assemble, lay bare and reveal his proofs; merely setting forth factual or legal conclusions is not sufficient); Polanco v. City of New York,244 A.D.2d322 (2d Dep't 1997) ("a shadowy semblance of an issue or bald conclusory allegations, even if believable, are insuffrcient to defeat a motion for summary judgment"). "[M]ere speculation and unsubstantiated allegations are insufhcient to raise a triable issue of fact." Judith M. v. Sisters of Charity Hospital. 93 N.Y.2d 932 (teee). 1 1. The Appellate Division, First Department has observed that "timidity in exercising the power [to grant summary judgment] in favor of a legitimate claim and against an unmerited one, not only defeats the ends ofjustice in a specific case, but contributes to calendar congestion which, in turn, denies to other suitors their rights to prompt determination of their litigation." Disabato v. Soffes, 9 A.D2d 291,299 (lst Dep't 1959). As the Court of Appeals recently recognized tn of New 2 N.Y.3d 648,65I (2004), because summary judgment avoids needless litigation costs and delay, "[w]here appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York state trial courts." 12. It is well-established that in order to defeat a motion for summary judgment, the opposing party must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v. City of New York, 49 N.Y.2d 557,562(19S0). Plaintiff may not manufacture issues of fact to preclude the granting of summary judgment. A mere shadowy semblance of an issue of fact or bald, conclusory allegations will not suffice to defeat a motion for summary judgment. Mallad Construction Corp. 9 9 of 15 v. County Federal Savings & Loan Assoc., 32 N.Y.2d285,290 (1973); Morowitz v. Naughton, 150 A.D.2d 536 (2d Dep't 1989) Point I 1. THE CITY IS ENTITLED TO SUMMARY JUDGMENT BECAUSE THE ACTIONS OF THE CITY \ryERE NOT THE PROXIMATE CAUSE OF PLAINTIFFS' INJURIES 13. The City respectfully submits that it is not a proper party to this action. Plaintiffs allege that a that they sustained physical injuries as a result of a motor vehicle accident involving the vehicle of Defendant Marion Gregg, in which Plaintiffs were passengers, and the 'West vehicle of Captain Gilbert Morales, when travelling at the intersection of 132nd Street and Twelfth Avenue. Plaintiffs further allege that the accident was a result of the negligence of the City, specifically in negligently operating the vehicle at a high speed, failing to properly use lights and sirens and failing to obey traffrc laws. See Notice of Claim, annexed hereto as Exhibit A. However, based on the testimony given by both Plaintiffs, Co-Defendant Marion Gregg (hereinafter "Co-Defendant Gregg") and Defendant Captain Gilbert Morales (hereinafter "Capt. Morale"), municipal Defendants are not a proper party to this action, as there is no showing that actions of the City were the proximate cause of Plaintifß' injuries. Plaintiffs' mere allegations and speculative testimony, with nothing more, is insufficient to defeat the City's motion for summary judgment. To establish a prima facie case of negligence against the City, a plaintiff must demonstrate that the City (a) owed a duty, (b) breached the duty, owed, (c) that the breach was the proximate cause of (d) the damages sustained. The City submits the witness testimony and the documents exchanged as paft of discovery, as evidence that Plaintiffs injuries were not t0 10 of 15 proximately caused by the City. Therefore, the Court should grant the City's motion for summary judgment because Plaintiffs cannot establish a prima facie case of negligence against the City. 14. In New York, a defendant's negligence must be the proximate cause of a plaintifÎs injury in order for that defendant to be liable to plaintiff. See, O'Toole v. Greenberg, 64 N.Y.2d 427 (1985); Rochlin v. Alamo,679 N.Y.2d 75 (2d Dep't ß9\; Schumacher v. Queens Countv Savings Bank,204 A.D.2d 526 (2d Dep't 1994). "Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint." Sheehan v. City of New York. 40 N.Y.2d 496 (1976). Furthermore, "[m]ere speculation as to the cause of [an accident], where there can be many causes, is fatal to a cause of action." Garvin v. Rosenberg, 204 A.D.2d 388 (2dDep't 1994); see also, Ziajka v. Pace Plumbing Corp.,254 A.D.2d 4S0 (2d Dep't 1998); Amadio v. Pathmark Stores. Inc.,253 A.D.2d 834 (2d Dep't 1998); Skay v. Public Library of Rockville Centre,238 4.D.2d397 (2d Dep't 1997); Lear)¡ v. North Shore University Hospital, 218 A.D.2d 686 (2d Dep't 1995); Earle v. Channel Home Center, 158 A.D.2d 507 (2d Dep't 1990). 15. Simply stated, in order to establish a prima facie case of negligence against the City, Plaintiff must produce evidence that the City's alleged negligence was a substantial cause of Plaintiffs' injuries. See, Felix 5l N.Y.2d 308 (1980); v. Altmans L 98 A.D.2d 468 (2d Dep't 1984); see also Boltax v. Jo), Day Camp,67 N.Y.2d 617 (1985); Mclntyre v. Beaver Dam Winter Spofs, 163 A.D.2d277 (2d Dep't 1990). To that end, Coufts have long held that, in determining whether a defendant's conduct constitutes a substantial cause of the injury ploducing events, il 11 of 15 several factors should be considered. Specif,rcally, Courts must consider: (l) the aggregate number of factors involved which contribute towards the harm and the effect which each has in producing it1'(2) whether the defendant has created a continuous force active up to the time of harm, or whether the situation was acted upon by other forces for which the defendant is not responsible, and (3) the lapse of time. See, Mack, 98 A.D.2d at 666-67 . 16. It is evident that Plaintiffs' testimony cannot establish that the injuries allegedly sustained by them were caused by any action on the part of the City. As was noted in the Motor Vehicle Accident report, and later testified by Co-Defendant Gregg, it was Co- Defendant Gregg's lack of attention that caused the accident - fact not at issue, as Co-Defendant Gregg does not deny the correctness of the statements made by him to the police ofhcers who f,rlled out the accident report. See, Exhibit E, at pgs. 50-51. Neither the Plaintiffs, nor Co- Defendant Gregg claim that Capt. Morales did anything w.rong. Co-Defendant Gregg's attempt to make a right turn from the left lane was in clear violation of the New York Vehicle and Traffic Law $ I 160 (a), which states in relevant part: "Required position and method of turning at intersections. The driver of a vehicle intending to turn at an intersection shall do so as follows: (a) Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right hand curb or edge of the roadway or, where travel on the shoulder or slope has been authorized, from the should or slope." 17. Based on this violation of the Vehicle and Traffic Law, Co-Defendant Gregg clearly breached his due of care to the two Plaintifß in the present action, and was hence, the sole proximate cause of their injuries. In Vainer v. DiSalvo, the Second Department lound that violation of the Vehicle and Traffic Law constitutes negligence as a matter of law. See Vainer v. Dialvo,79A.D.3d 1023 (2d Dep't 2010); see also, Botero v. Eraez,289 A.D.2d274 (2d Dep't 2001) and Fenara v. Castro,283 A.D.2d392 (2d Dep't 2001). t2 12 of 15 18. Numerous courts in this State have emphasized the importance of showing that the defendant's alleged negligence was a substantial cause of the injury producing events. For example, in Silver v. Sheraton-Smithtown Inn, l2l A.D.2d 7ll (2d Dep't 1986), an altercation occurred in a cocktail lounge of an inn between the plaintiff and another patron. The patron pushed plaintiff into a shelf with empty glasses, injuring plaintiff s arm and hand. Plaintiff then sued the owner of the cocktail lounge on negligence grounds. The Court held that "[a]s a matter of law, the altercation was the sole proximate cause of the injuries and the presence of the shelf and glasses merely furnished the condition for the event's occurrence and was not one of the causes of those injuries." Silver, 121 A.D.2d at71l. The Silver Court then dismissed plaintiff s complaint with respect to the cocktail lounge owner's negligence as it determined that any such alleged negligence was not the proximate cause if the plaintiff s injuries. 19. The City respectfully submits that the instant case presents circumstances which merit summary judgment in favor of the City. Notably, Plaintiff cannot establish that the City was the proximate cause of their injuries. For the foregoing reasons, the Court should grant the City's motion for summary judgment finding that the City was not the proximate cause of Plaintiffs' injuries, and dismiss the Complaint. l3 13 of 15 WHEREFORE, it is respectfully requested that this Court grant City's motion rn itq entirety, and for such other and further relief that this Court deems proper. Dated New York, New York November 21,2016 ZACHARY V/. CARTER Corporation Counsel of the City of New York Attomey for Defendant THE CITY OF NEW YORK 100 Church Street New York, New York 10007 By: Diana Counsel (2r2) 3 -3973 TO: LOUIS C. FIABANE Attorney for the Plaintiffs 304 East 49th Street New York, NY 10017 LAV/ OFFICES OF JAMES J. TOOMEY Attorney for Defendant MARION GREGG 485 Lexington Avenue, 7th Fl. New York, NY 10017 t4 14 of 15 Index No. 15793912015 SUPREME COURT OF THE STATE OF NEV/ YORK COI.]NTY OF NEV/ YORK MICHELLE BOWMAN and TREAVA BOWMAN, Plaintiff, -against- MARION GREGG, GILBERT MORALES AND THE CITY OF NEV/ YORK, Defendants. AFFIRMATION IN SUPPORT OF MOTION ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 By: Diana Manakhimova Tel.(212) 3s6-3973 LD File No.2015-037945 Due and timely service is hereby admítted. New York, N.Y. ,2016 ..Esq. Attorney for 15 of 15