Preview
FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017
SUPREME COURT OF THE STATE OF NEW YORK
COTINTY OF NEW YORK
---------------x
MICHELLE BOWMAN and TREAVA BOWMAN, AFFIRMATION IN
REPLY
Plaintiffs,
- against - Index #. 1579391201s
TT#: 2015-037945
MAzuON GREGG, GILBERT MORALES AND THE
CITY OF NEW YORK,
DIANA MANAKHIMOVA, an attorney admitted to practice before the courts of
the state of New York affirms, pursuant to Rule 2106 ofthe cpLR and subject to the penalties for
perjury, that the following facts are true:
1' This reply affirmation is submitted in further support of the motion of
Defendants' THE CITY oF NEw YORK and GILBERT MORALES (hereinafter ..Municipal
Defendants"), which seeks an order pursuant to G.P.L.R . ç 3212 granting summary judgment to
Defendants and dismissing the Plaintiffs' complaint. The Defendants have met their burden of
establishing their entitlement to summary judgment.
2' In Opposition to the Municipal Defendants' motion, plaintifß and Co-Defendant
MARION GREGG (hereinafter "the Co-Defend ant"), for the first time, assert that there is a
question of fact as to whether the Northbound
roadway of Twelfth Avenue at its intersection with
west 132nd Street was in fact a two lane road. It must be noted that in their pleadings plaintifß
claim their injuries were caused by the "negligence, culpable
conduct, carelessness and recklessness
of the defendants in the ownership, operation, management and maintenance of the aforesaid motor
vehicles'" (emphasis added) See Summons and verified complaint, annexed to the moving papers
as Exhibit B' Not once, during the pendency of the matter, have plaintiffs demanded information
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related to the layout of the Nofhbound roadway of Twelfth Avenue at its intersection with west
132nd Street.
POINT I
PLAINTIFF'S' coNTENTIoNn THAT oN MARCH 14, 2015
NORTHBOUND ROADWAY OF TWELF'TH AVENUE AT ITS
INTERSECTION \ilITH WEST 132ND STREET WAS A ONE
LANE ROADWAY,IS FALSE
3' To the extent this Court entertains Plaintifß arguments related to the layout of
the roadway in question, Municipal Defenrdants maintain that on March 14, 2015,the day of the
motor vehicle accident in question, the Northbound portion of Twelfth Avenue at its intersection
with west 132nd Street was a two lane roadway. Mr. sameeh Barkho, the chief of the Design and
construction Unit of the New York city Department of Transportation ..DoT,,),
(hereinafter has
personally conducted a search for the most recent marking records for the roadway located on
Twelfth Avenue at its intersection with v/est in the county,
132nd Street city and state of New
York' See Affidavit of Mr. Barkho, annexed hereto as Exhibit A. In his Affidavit, Mr. Barkho
attests that the last marking records on file for the intersection in question were : l) paving Marking
order M-72732 dated April, 74,2009, and 2) Pavement Marking Drawing MD-553 date May 7,
2003, which was later on revised two times, once on June 20, 2003 andthen again on Septemb er 20,
2005 'Id' Based on these records, Mr. Barkho was able to determine that the Northbound portion of
Twelfth Avenue at its intersection with v/est 132nd street has two lanes for moving traffic, and
since there are no superseding records on file, replacing the April 14,2009 markings, that means on
March 14'2015 the Northbound roadway in question had two lanes for moving traffic.
4' In addition, it must be noted that the Police Accident Report filled out as a result
of the March 14, 2015 accident depicts the Nor"thbound roadway of Twelfth Avenue at the
intersection in question, to be a two lane roadway, as is indicated by the dotted line drawn. See
2
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Response to the case scheduling order dated March 2,2016, annexed to the moving papers as
Exhibit M' Plaintifß, in their opposition papers attempt to cast doubt to the authenticity and
correctness of the the Police Accident Report, however, it is important to note that co-Defendant,
during his deposition, on May 17,2016, unequivocally testified that he remembered making the
statement to the police officer filling out the Police Accident Report. see Marion Gregg,s EBT
Transcript, annexed to the moving papers as Exhibit E, at pgs. 50-51.
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. I was not paying attention and did not see vehicle number
two,
which was Gilbert 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.: "I didn't see him.,,
MS. JEAN-BART: Answer his question. Do you remember saying that to the cop?
THE V/ITNESS: yes
Id. atpgs.50-51.
Hence, co-Defendant authenticated the document and confirmed that the statement
allegedly made by him, as written down in the Police Accident Report, was true. As the police
Accident Report was authenticated by co-Defendant, nor did he make any objections to anything
written on it, there can be no question of fact as to either the
diagram drawn nor to the statements
made by Co-Defendant.
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POINT II
REGARDLESS oF THE LAYour oF THE RoADwAy, co-
DEFENDANT GREGG'S ACTIONS \ryERB IN CLEAR
VIOLATION OF THE NEW YORK VEHICLE AND TRAF'FIC
LA\ry 91120 (b)
5' Assuming, arguendo, that the roadway in question was a one lane road,
immediately prior to the accident in question Co-Defendant attempted to make an illegal right turn,
as he himself testified, he was very close to the double yellow lines separating the oncoming flow of
traffic' See Marion Gregg's EBT Transcript, annexed to the moving papers as Exhibit E, atpg.32.
New York vehicle and TrafÍic Law g1120 (b) reads as follows:
(b) In addition, upon all roadways, any vehicle proceeding at ress than
the normal speed of traffic at the time and place anã under the
conditions then existing shall be driven in the right hand lane then
available for traffic, or as close as practicable to the right-hand curb or
edge of the roadway, except when overtaking and passing another
vehicle proceeding in the same direction or when preparing for a left
turn at an intersection or into a private road or driveway.
At no point during his deposition did Co-Defendant testify, or even imply, that he
was attempting to either overtake or pass another vehicle traveling in the same direction as his. In
fact, Co-Defendant made it crystal clear, that he was attempting to make a right turn onto Vy'est
l32nd street' see Marion Gregg's EBT Transcript, annexed to the moving papers as Exhibit E, at
pgs' 26-32' The fact that Co-Defendant did not receive a Summons for making an illegal right turn,
does not refute the fact that according to his own testimony, Co-Defendant was attempting to make
a right turn, from the left most portion of the Northbound lane.
6' Municipal Defendants respectfully submit that they are not proper parties 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 vehicle of Captain Gilbert Morales, when travelling at the intersection of West 132,'d Street and
4
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Twelfth Avenue' Plaintifß fuither allege that the accident was a result of the negligence of the
Municipal Defendants, 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' 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 Municipal Defendants were the proximate cause of plaintifß, injuries. plaintifß,
mere allegations and speculative testimony, with nothing more, is insufficient to defeat the
Municipal Defendants' motion for summary judgment. To establi sh a prima facie case of
negligence against the Municipal Defendants, a plaintiff must demonstrate that the Municipal
Defendants (a) owed a duty, (b) breached the duty, owed, (c) that the breach was the proximate
cause of (d) the damages sustained. The Municipal Defendants submit the witness testimony and
the documents exchanged as part of discovery, as evidence plaintiffs
that injuries were not
proximately caused by the Municipal Defendants. Therefore, the court should grant the Municipal
Defendants'motion for summary judgment because Plaintifß cannot establish aprimafacie case of
negligence against them.
7. In New York, a defendant's negligence must be the proximate cause of a
plaintiff s injury in order for that defendant to be liable to plaintiff. See, O'T oole v. 64
N'Y'2d 427 (1985); Rochlin v. Alamo, 619 N.Y.2d 75 (2d Dep't l99a); Schumacher v. eueens
county Savinss Bank,204 A.D.2d 526 (2d Dep't 1gg4). "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
whichproducedtheharmsustainedbyonewhobringsthecomplaint.,,@
York' 40 N'Y'2d 496 (1976). Furthermore, "[m]ere speculation as to the cause of
[an accident],
wheretherecanbemanycauSeS,isfataltoacauseofaction.,,@,204A.D.2d
388(2dDep,t1994);seealso,,254A.D'2d480(2dDep,tl99s);
5
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Amadio v. Pathmark stores. Inc., 253 A.D.2d g34 (2d Dep't l99g); Skav v. Public of
Rockville Centre' 238 A.D.2d, 397 (2d Dep't 1997); Leary v. North Shore university Hospital, 21g
A'D'2d 686 (2d Dep't 1995); Earle v. Channel Home Center, 158 4.D.2 d 507 (2d Dep,t 1990).
8' Simply stated, in order to establish a prima facie case of negligence against the
Municipal Defendants, Plaintifß must produce evidence that the Municipal Defendants, alleged
negligencewasasubstantialcauSeofPlaintiffs,injuries.Sce,
Corp', 51 N'Y.2d 308 (19s0); Mack v. Altmans Stage Lighting Companv. Inc. , gg A.D.2d,46g (2d,
Dep't 1984); see also Boltax v. Joy Dav camp, 67 N.y.2 d 617 (19s5);
@
'Winter
Soorts- 163 A.D.2d 277 (2d Dep't 1990). To that end, courts have long held that, in
determining whether a defendant's conduct constitutes a substantial cause of the injury producing
events, several factors should be considered. Specifically, Courts must consider: (l) the aggregate
number of factors involved which contribute towards the harm and the effect which each has in
producing it; (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, 9g A.D.2d at 666_67.
9' It is evident that Plaintifß' testimony cannot establish that the injuries allegedly
sustained by them were caused by any action on the part of the Municipal Defendants. 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 officers who filled
out the accident report. See, Exhibit E, at pgs. 50-51. Neither the plaintiffs, nor co-Defendant
Gregg claim that Capt' Morales did anything wrong. 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 parl:
"Required position and method of turning at intersections.
6
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The driver of a vehicle intending to tum 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."
10. Based on this violation of the Vehicle and Traffic Law, Co-Defendant Gregg
clearly breached his due of care to the two Plaintiffs in the present action, and was hence, the sole
proximate cause of their injuries. In Vainer v. DiSalvo, the Second Department found 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.2d 274 (2d Dep't 2001) and
Ferrara v . Castro" 283 A.D.2d392 (2dDep't 2001).
I 1. 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 Sheraton 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.?' Silvêr, l2l A.D.2d at 7lI. 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.
' 12. The Municipal Defendants respectfully submits that the instant case presents
circumstances which merit summary judgment in favor of the Municipal Defendants. Notably,
Plaintiffs cannot establish that the Municipal Defendants were the proximate cause of their injuries.
For the foregoing reasons, the Court should grant the Municipal Defendants' motion for summary
7
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judgment finding that the Municipal Defendants were not the proximate cause of Plaintiffs' injuries,
and dismiss the Complaint.
\ilHEREFORE, it is respectfully requested that this Court grant the Municipal
Defendants' motion in its entirety, and for such other and further relief that this Court deems proper
Dated: New York, New York
February 3,2017
DIANA MAN
Assistant Counsel
TO:
LOUIS C. FIABANE
Attornev for the Plaintiffs
304 East4gth Street
New York, NY 10017
LAV/ OFFICES OF JAMES J. TOOMEY
Attorney for Defendant MARION GREGG
485 Lexington Avenue, 7'h Fl.
New York, NY 10017
8
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Index No. 15793912015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEV/ YORK
MICHELLE BOV/MAN and TREAVA BOV/MAN,
Plaintiffs,
-against-
MARION GREGG, GILBERT MORALES AND THE CITY OF
NEV/ YORK,
Defendants
AFFIRMATION IN REPLY
ZACHARY W. CARTER,
Corporation Counsel of the City of New York
100 Church Street
New York, NY 10007
By: Diana Manakhimova
Tel.(212) 3s6-397s
LD File No.2015-037945
Due and timely service is hereby admitted.
New York, N.Y. ,2017
..Esq.
Attorney.for
2
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Preview
FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 SUPREME COURT OF THE STATE OF NEW YORK COTINTY OF NEW YORK ---------------x MICHELLE BOWMAN and TREAVA BOWMAN, AFFIRMATION IN REPLY Plaintiffs, - against - Index #. 1579391201s TT#: 2015-037945 MAzuON GREGG, GILBERT MORALES AND THE CITY OF NEW YORK, DIANA MANAKHIMOVA, an attorney admitted to practice before the courts of the state of New York affirms, pursuant to Rule 2106 ofthe cpLR and subject to the penalties for perjury, that the following facts are true: 1' This reply affirmation is submitted in further support of the motion of Defendants' THE CITY oF NEw YORK and GILBERT MORALES (hereinafter ..Municipal Defendants"), which seeks an order pursuant to G.P.L.R . ç 3212 granting summary judgment to Defendants and dismissing the Plaintiffs' complaint. The Defendants have met their burden of establishing their entitlement to summary judgment. 2' In Opposition to the Municipal Defendants' motion, plaintifß and Co-Defendant MARION GREGG (hereinafter "the Co-Defend ant"), for the first time, assert that there is a question of fact as to whether the Northbound roadway of Twelfth Avenue at its intersection with west 132nd Street was in fact a two lane road. It must be noted that in their pleadings plaintifß claim their injuries were caused by the "negligence, culpable conduct, carelessness and recklessness of the defendants in the ownership, operation, management and maintenance of the aforesaid motor vehicles'" (emphasis added) See Summons and verified complaint, annexed to the moving papers as Exhibit B' Not once, during the pendency of the matter, have plaintiffs demanded information 1 of 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 related to the layout of the Nofhbound roadway of Twelfth Avenue at its intersection with west 132nd Street. POINT I PLAINTIFF'S' coNTENTIoNn THAT oN MARCH 14, 2015 NORTHBOUND ROADWAY OF TWELF'TH AVENUE AT ITS INTERSECTION \ilITH WEST 132ND STREET WAS A ONE LANE ROADWAY,IS FALSE 3' To the extent this Court entertains Plaintifß arguments related to the layout of the roadway in question, Municipal Defenrdants maintain that on March 14, 2015,the day of the motor vehicle accident in question, the Northbound portion of Twelfth Avenue at its intersection with west 132nd Street was a two lane roadway. Mr. sameeh Barkho, the chief of the Design and construction Unit of the New York city Department of Transportation ..DoT,,), (hereinafter has personally conducted a search for the most recent marking records for the roadway located on Twelfth Avenue at its intersection with v/est in the county, 132nd Street city and state of New York' See Affidavit of Mr. Barkho, annexed hereto as Exhibit A. In his Affidavit, Mr. Barkho attests that the last marking records on file for the intersection in question were : l) paving Marking order M-72732 dated April, 74,2009, and 2) Pavement Marking Drawing MD-553 date May 7, 2003, which was later on revised two times, once on June 20, 2003 andthen again on Septemb er 20, 2005 'Id' Based on these records, Mr. Barkho was able to determine that the Northbound portion of Twelfth Avenue at its intersection with v/est 132nd street has two lanes for moving traffic, and since there are no superseding records on file, replacing the April 14,2009 markings, that means on March 14'2015 the Northbound roadway in question had two lanes for moving traffic. 4' In addition, it must be noted that the Police Accident Report filled out as a result of the March 14, 2015 accident depicts the Nor"thbound roadway of Twelfth Avenue at the intersection in question, to be a two lane roadway, as is indicated by the dotted line drawn. See 2 2 of 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 Response to the case scheduling order dated March 2,2016, annexed to the moving papers as Exhibit M' Plaintifß, in their opposition papers attempt to cast doubt to the authenticity and correctness of the the Police Accident Report, however, it is important to note that co-Defendant, during his deposition, on May 17,2016, unequivocally testified that he remembered making the statement to the police officer filling out the Police Accident Report. see Marion Gregg,s EBT Transcript, annexed to the moving papers as Exhibit E, at pgs. 50-51. 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. I was not paying attention and did not see vehicle number two, which was Gilbert 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.: "I didn't see him.,, MS. JEAN-BART: Answer his question. Do you remember saying that to the cop? THE V/ITNESS: yes Id. atpgs.50-51. Hence, co-Defendant authenticated the document and confirmed that the statement allegedly made by him, as written down in the Police Accident Report, was true. As the police Accident Report was authenticated by co-Defendant, nor did he make any objections to anything written on it, there can be no question of fact as to either the diagram drawn nor to the statements made by Co-Defendant. 3 oft 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 POINT II REGARDLESS oF THE LAYour oF THE RoADwAy, co- DEFENDANT GREGG'S ACTIONS \ryERB IN CLEAR VIOLATION OF THE NEW YORK VEHICLE AND TRAF'FIC LA\ry 91120 (b) 5' Assuming, arguendo, that the roadway in question was a one lane road, immediately prior to the accident in question Co-Defendant attempted to make an illegal right turn, as he himself testified, he was very close to the double yellow lines separating the oncoming flow of traffic' See Marion Gregg's EBT Transcript, annexed to the moving papers as Exhibit E, atpg.32. New York vehicle and TrafÍic Law g1120 (b) reads as follows: (b) In addition, upon all roadways, any vehicle proceeding at ress than the normal speed of traffic at the time and place anã under the conditions then existing shall be driven in the right hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway. At no point during his deposition did Co-Defendant testify, or even imply, that he was attempting to either overtake or pass another vehicle traveling in the same direction as his. In fact, Co-Defendant made it crystal clear, that he was attempting to make a right turn onto Vy'est l32nd street' see Marion Gregg's EBT Transcript, annexed to the moving papers as Exhibit E, at pgs' 26-32' The fact that Co-Defendant did not receive a Summons for making an illegal right turn, does not refute the fact that according to his own testimony, Co-Defendant was attempting to make a right turn, from the left most portion of the Northbound lane. 6' Municipal Defendants respectfully submit that they are not proper parties 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 vehicle of Captain Gilbert Morales, when travelling at the intersection of West 132,'d Street and 4 4 of 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 Twelfth Avenue' Plaintifß fuither allege that the accident was a result of the negligence of the Municipal Defendants, 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' 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 Municipal Defendants were the proximate cause of plaintifß, injuries. plaintifß, mere allegations and speculative testimony, with nothing more, is insufficient to defeat the Municipal Defendants' motion for summary judgment. To establi sh a prima facie case of negligence against the Municipal Defendants, a plaintiff must demonstrate that the Municipal Defendants (a) owed a duty, (b) breached the duty, owed, (c) that the breach was the proximate cause of (d) the damages sustained. The Municipal Defendants submit the witness testimony and the documents exchanged as part of discovery, as evidence plaintiffs that injuries were not proximately caused by the Municipal Defendants. Therefore, the court should grant the Municipal Defendants'motion for summary judgment because Plaintifß cannot establish aprimafacie case of negligence against them. 7. In New York, a defendant's negligence must be the proximate cause of a plaintiff s injury in order for that defendant to be liable to plaintiff. See, O'T oole v. 64 N'Y'2d 427 (1985); Rochlin v. Alamo, 619 N.Y.2d 75 (2d Dep't l99a); Schumacher v. eueens county Savinss Bank,204 A.D.2d 526 (2d Dep't 1gg4). "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 whichproducedtheharmsustainedbyonewhobringsthecomplaint.,,@ York' 40 N'Y'2d 496 (1976). Furthermore, "[m]ere speculation as to the cause of [an accident], wheretherecanbemanycauSeS,isfataltoacauseofaction.,,@,204A.D.2d 388(2dDep,t1994);seealso,,254A.D'2d480(2dDep,tl99s); 5 5 of 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 Amadio v. Pathmark stores. Inc., 253 A.D.2d g34 (2d Dep't l99g); Skav v. Public of Rockville Centre' 238 A.D.2d, 397 (2d Dep't 1997); Leary v. North Shore university Hospital, 21g A'D'2d 686 (2d Dep't 1995); Earle v. Channel Home Center, 158 4.D.2 d 507 (2d Dep,t 1990). 8' Simply stated, in order to establish a prima facie case of negligence against the Municipal Defendants, Plaintifß must produce evidence that the Municipal Defendants, alleged negligencewasasubstantialcauSeofPlaintiffs,injuries.Sce, Corp', 51 N'Y.2d 308 (19s0); Mack v. Altmans Stage Lighting Companv. Inc. , gg A.D.2d,46g (2d, Dep't 1984); see also Boltax v. Joy Dav camp, 67 N.y.2 d 617 (19s5); @ 'Winter Soorts- 163 A.D.2d 277 (2d Dep't 1990). To that end, courts have long held that, in determining whether a defendant's conduct constitutes a substantial cause of the injury producing events, several factors should be considered. Specifically, Courts must consider: (l) the aggregate number of factors involved which contribute towards the harm and the effect which each has in producing it; (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, 9g A.D.2d at 666_67. 9' It is evident that Plaintifß' testimony cannot establish that the injuries allegedly sustained by them were caused by any action on the part of the Municipal Defendants. 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 officers who filled out the accident report. See, Exhibit E, at pgs. 50-51. Neither the plaintiffs, nor co-Defendant Gregg claim that Capt' Morales did anything wrong. 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 parl: "Required position and method of turning at intersections. 6 6 of 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 The driver of a vehicle intending to tum 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." 10. Based on this violation of the Vehicle and Traffic Law, Co-Defendant Gregg clearly breached his due of care to the two Plaintiffs in the present action, and was hence, the sole proximate cause of their injuries. In Vainer v. DiSalvo, the Second Department found 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.2d 274 (2d Dep't 2001) and Ferrara v . Castro" 283 A.D.2d392 (2dDep't 2001). I 1. 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 Sheraton 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.?' Silvêr, l2l A.D.2d at 7lI. 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. ' 12. The Municipal Defendants respectfully submits that the instant case presents circumstances which merit summary judgment in favor of the Municipal Defendants. Notably, Plaintiffs cannot establish that the Municipal Defendants were the proximate cause of their injuries. For the foregoing reasons, the Court should grant the Municipal Defendants' motion for summary 7 7 of 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 judgment finding that the Municipal Defendants were not the proximate cause of Plaintiffs' injuries, and dismiss the Complaint. \ilHEREFORE, it is respectfully requested that this Court grant the Municipal Defendants' motion in its entirety, and for such other and further relief that this Court deems proper Dated: New York, New York February 3,2017 DIANA MAN Assistant Counsel TO: LOUIS C. FIABANE Attornev for the Plaintiffs 304 East4gth Street New York, NY 10017 LAV/ OFFICES OF JAMES J. TOOMEY Attorney for Defendant MARION GREGG 485 Lexington Avenue, 7'h Fl. New York, NY 10017 8 8 of 9 FILED: NEW YORK COUNTY CLERK 02/03/2017 04:59 PM INDEX NO. 157939/2015 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 02/03/2017 Index No. 15793912015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEV/ YORK MICHELLE BOV/MAN and TREAVA BOV/MAN, Plaintiffs, -against- MARION GREGG, GILBERT MORALES AND THE CITY OF NEV/ YORK, Defendants AFFIRMATION IN REPLY ZACHARY W. CARTER, Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 By: Diana Manakhimova Tel.(212) 3s6-397s LD File No.2015-037945 Due and timely service is hereby admitted. New York, N.Y. ,2017 ..Esq. Attorney.for 2 9 of 9