Preview
FILED: KINGS COUNTY CLERK 09/24/2019 03:33 PM INDEX NO. 521852/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/24/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
PAUL JOHN CARLI,
Plaintiff,
AFFIRMATION IN
-against- SUPPORT
MARIEFLORE POULARD and LUCIAN RONALD, Index No.: 521852118
Defendants.
-------x
Adam White, an attorney duly admitted to practice law betbre the Courts of the
State of New York, affirm the following under the penalties of perjury:
1. I am a principal of the Law Offrce of Vaccaro & V/hite attorneys for plaintiff
and am familiar with the facts and circumstances detailed herein based upon my personal
knowledge and my review of the file maintained in my office.
2. Plaintiff commenced this action seeking compensation for serious injuries
he sustained as a result of being struck by a white van owned by defendant MARIEFLORE
POULARD and operated by defendant RONALD LUCIAN slhla LUCIAN RONALD
(hereinafter the "subject motor vehicle") on July 15,2018 in the late afternoon/early
evening on Atlantic Avenue in Brooklyn. Plaintiff was riding his bicycle westbound with
the flow of traffrc on Atlantic Avenue when he was struck by the subject motor vehicle as
it passed him. (See Supplemental Summons, First Amended Verified Complaint and
Verified Answer annexed as Exhibit A.)
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3. In their Verified Answer, defendants admit ownership and operation of the
subject motor vehicle but deny knowledge of whether the subject vehicle came into contact
with plaintiff and/or the bicycle on which he was riding.
4. In his deposition, plaintiff testified that he was travelling westbound on
Atlantic Avenue in the right travel lane approximately two (2) feet from the parked cars to
his right approaching the intersection of Hoyt Street travelling approximately l0-15 mph
when the left side of his back was struck by the front right corner of a white van. (See EBT
transcript of plaintiff at pages 1 8- 19 annexed as Exhibit B.) He described the impact as
"heavy" and bouncing along the side of the van as it passed him and then onto the ground.
(Exhibit B at page 23) After plaintiff was knocked to the ground, plaintiff recalled the
white van pull over to the side ofAtlantic Avenue just past its intersection with Hoyt Street.
Nevertheless, shortly thereafter, the white van left the scene without waiting for the police
or providing any identifuing information. (Exhibit B at page25)
5. An image of plaintiffriding his bicycle approximately 4 car lengths in front
of defendants' white van in the block before Hoyt Street captured by a camera across the
street on Atlantic that plaintiff attests fairly and accurate shows both him and the van on
Atlantic Avenue just prior to the collision is annexed to plaintiff's Affrdavit in Support
annexed as Exhibit C.)
6. A non-party witness to the collision, Miranda Young, testified at her
deposition that she was sitting in her car, the first car stopped on Hoyt Street at the traffic
light of its intersection with Atlantic Avenue, when she observed defendants' white van
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passing plaintiff and knocking him to the ground. (See pages 10-12 of Young EBT annexed
as Exhibit D.)
7. Ms. Young testified that when her light changed to green, she turned right
onto Atlantic Avenue and followed defendants' white van because she observed it proceed
to leave the scene in an attempt to record the van's license plate number. She caught up to
defendants' van on Atlantic Avenue near the entrance to the BQE, pulled in front of it,
honked her horn to get defendant RONALD LUCIEN'S (the driver's) attention, rolled
down her window and yelled at him that he had "hit someone" with his van back where he
came from on Atlantic Avenue, that she was going to call the police and give them his
license plate number and that he should return to the place where he hit the cyclist
þlaintiff). (See pages 16-19 of Young EBT, Exhibit D.)
ARGUMENT
8. Plaintiff has establishedhis primafacie entitlement to summary judgment
on liability by demonstrating that defendant RONALD LUCIEN was negligent by hitting
plaintiff with the right front corner of defendants' white van as defendant LUCIEN was
passing plaintiff who was riding his bicycle straight in the right side of the right westbound
lane for moving traffic and by demonstrating plaintiff's lack of comparative fault.
9., Vehicle and Traffic Law (VTL) $1122-a (Overtaking a bicycle) provides
that "[t]he operator of a vehicle overtaking, from behind, a bicycle proceeding on the same
side of a roadway shall pass to the left of such bicycle at a safe distance until safely clear
thereof."
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10. Defendant LUCIEN plainly violated VTL $1122-aby passing plaintiffwho
was riding in the same direction to defendants' right with the front right corner of
defendants'vehicle knocking plaintiffoff of his bicycle.
11. VTL $1146 (Drivers to exercise due care) provides in part as follows: a)
Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle
shall exercise due care to avoid colliding with any bicyclist ...upon any roadway and shall
give warning by sounding the horn when necessary."
12. Defendants violated VTL $1l46by not sounding their horn, exercising due
care and colliding with plaintiff who was riding his bicycle. (See CARLI EBT annexed as
Exhibit B atpage23.)
13. VTL $600 (2) (a) (Leaving the Scene) (Personal Injury) provides in part -
Any person operating a motor vehicle who, knowing or having cause to know
that personal injury has been caused to another person, due to an incident
involving the motor vehicle operated by such person shall, before leaving the
place where the said personal injury occurred, stop, exhibit his or her license
and insurance identification card for such vehicle, when such card is
required pursuant to articles six and eight of this chapter, and give his or her
name, residence, including street and street number, insurance carrier and
insurance identification information including but not limited to the number and
effective dates of said individual's insurance policy and license number, to the
injured party, if practical, and also to a police officer, or in the event that no
police officer is in the vicinity of the place of said injury, then, he or she shall
report said incident as soon as physically able to the nearest police station or
judicial officer.
14. Defendant LUCIEN violated VTL $600(2)(a) by leaving the scene after
knocking plaintiffoffof his bicycle and knowing or having reason to believe that plaintiff
was injured as a result without providing his required personal and insurance information
and not reporting the subject collision at any time to a police station or judicial officer.
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15. As a result of defendant LUCIEN'S leaving the scene without providing his
information or insurance information, plaintiffwas forced to file a claim with MVAIC who
provides minimum liability and basic PIP (No Fault) insurance in similar hit and run
situations.l
V/HEREFORE, plaintiff requests that the Court enter an order granting plaintiff
partial summary judgment on the issue of liability, directing the clerk to enter order to that
effect and granting such other and further relief as the Court may deem just and proper.
Dated: New York, New York
September 24,2019
Respectfully submitted,
By:
Adam te
Law Office of Vaccaro & White
A t t o r ney s for iff
P I ai nt
17 Battery Place, Suite 204
New York NY 10004
212.577.3040
I In an arbitration
proceeding filed by MVAIC against Geico, defendants' insurers, seeking reimbursement
fiom Geico of monies MVAIC paid to plaintiff before plaintiff was able to obtain the identity of
defendants, the arbitratorestablished that Geico was responsible to indemniô/ MVAIC on behalf of
defendants' as their insured arising from the subject collision. (See attached ArbitrationDecision annexed
as Exhibit E.)
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Preview
FILED: KINGS COUNTY CLERK 09/24/2019 03:33 PM INDEX NO. 521852/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/24/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS PAUL JOHN CARLI, Plaintiff, AFFIRMATION IN -against- SUPPORT MARIEFLORE POULARD and LUCIAN RONALD, Index No.: 521852118 Defendants. -------x Adam White, an attorney duly admitted to practice law betbre the Courts of the State of New York, affirm the following under the penalties of perjury: 1. I am a principal of the Law Offrce of Vaccaro & V/hite attorneys for plaintiff and am familiar with the facts and circumstances detailed herein based upon my personal knowledge and my review of the file maintained in my office. 2. Plaintiff commenced this action seeking compensation for serious injuries he sustained as a result of being struck by a white van owned by defendant MARIEFLORE POULARD and operated by defendant RONALD LUCIAN slhla LUCIAN RONALD (hereinafter the "subject motor vehicle") on July 15,2018 in the late afternoon/early evening on Atlantic Avenue in Brooklyn. Plaintiff was riding his bicycle westbound with the flow of traffrc on Atlantic Avenue when he was struck by the subject motor vehicle as it passed him. (See Supplemental Summons, First Amended Verified Complaint and Verified Answer annexed as Exhibit A.) 1 of 5 FILED: KINGS COUNTY CLERK 09/24/2019 03:33 PM INDEX NO. 521852/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/24/2019 3. In their Verified Answer, defendants admit ownership and operation of the subject motor vehicle but deny knowledge of whether the subject vehicle came into contact with plaintiff and/or the bicycle on which he was riding. 4. In his deposition, plaintiff testified that he was travelling westbound on Atlantic Avenue in the right travel lane approximately two (2) feet from the parked cars to his right approaching the intersection of Hoyt Street travelling approximately l0-15 mph when the left side of his back was struck by the front right corner of a white van. (See EBT transcript of plaintiff at pages 1 8- 19 annexed as Exhibit B.) He described the impact as "heavy" and bouncing along the side of the van as it passed him and then onto the ground. (Exhibit B at page 23) After plaintiff was knocked to the ground, plaintiff recalled the white van pull over to the side ofAtlantic Avenue just past its intersection with Hoyt Street. Nevertheless, shortly thereafter, the white van left the scene without waiting for the police or providing any identifuing information. (Exhibit B at page25) 5. An image of plaintiffriding his bicycle approximately 4 car lengths in front of defendants' white van in the block before Hoyt Street captured by a camera across the street on Atlantic that plaintiff attests fairly and accurate shows both him and the van on Atlantic Avenue just prior to the collision is annexed to plaintiff's Affrdavit in Support annexed as Exhibit C.) 6. A non-party witness to the collision, Miranda Young, testified at her deposition that she was sitting in her car, the first car stopped on Hoyt Street at the traffic light of its intersection with Atlantic Avenue, when she observed defendants' white van 2 2 of 5 FILED: KINGS COUNTY CLERK 09/24/2019 03:33 PM INDEX NO. 521852/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/24/2019 passing plaintiff and knocking him to the ground. (See pages 10-12 of Young EBT annexed as Exhibit D.) 7. Ms. Young testified that when her light changed to green, she turned right onto Atlantic Avenue and followed defendants' white van because she observed it proceed to leave the scene in an attempt to record the van's license plate number. She caught up to defendants' van on Atlantic Avenue near the entrance to the BQE, pulled in front of it, honked her horn to get defendant RONALD LUCIEN'S (the driver's) attention, rolled down her window and yelled at him that he had "hit someone" with his van back where he came from on Atlantic Avenue, that she was going to call the police and give them his license plate number and that he should return to the place where he hit the cyclist þlaintiff). (See pages 16-19 of Young EBT, Exhibit D.) ARGUMENT 8. Plaintiff has establishedhis primafacie entitlement to summary judgment on liability by demonstrating that defendant RONALD LUCIEN was negligent by hitting plaintiff with the right front corner of defendants' white van as defendant LUCIEN was passing plaintiff who was riding his bicycle straight in the right side of the right westbound lane for moving traffic and by demonstrating plaintiff's lack of comparative fault. 9., Vehicle and Traffic Law (VTL) $1122-a (Overtaking a bicycle) provides that "[t]he operator of a vehicle overtaking, from behind, a bicycle proceeding on the same side of a roadway shall pass to the left of such bicycle at a safe distance until safely clear thereof." a J 3 of 5 FILED: KINGS COUNTY CLERK 09/24/2019 03:33 PM INDEX NO. 521852/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/24/2019 10. Defendant LUCIEN plainly violated VTL $1122-aby passing plaintiffwho was riding in the same direction to defendants' right with the front right corner of defendants'vehicle knocking plaintiffoff of his bicycle. 11. VTL $1146 (Drivers to exercise due care) provides in part as follows: a) Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist ...upon any roadway and shall give warning by sounding the horn when necessary." 12. Defendants violated VTL $1l46by not sounding their horn, exercising due care and colliding with plaintiff who was riding his bicycle. (See CARLI EBT annexed as Exhibit B atpage23.) 13. VTL $600 (2) (a) (Leaving the Scene) (Personal Injury) provides in part - Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification card for such vehicle, when such card is required pursuant to articles six and eight of this chapter, and give his or her name, residence, including street and street number, insurance carrier and insurance identification information including but not limited to the number and effective dates of said individual's insurance policy and license number, to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then, he or she shall report said incident as soon as physically able to the nearest police station or judicial officer. 14. Defendant LUCIEN violated VTL $600(2)(a) by leaving the scene after knocking plaintiffoffof his bicycle and knowing or having reason to believe that plaintiff was injured as a result without providing his required personal and insurance information and not reporting the subject collision at any time to a police station or judicial officer. 4 4 of 5 FILED: KINGS COUNTY CLERK 09/24/2019 03:33 PM INDEX NO. 521852/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 09/24/2019 15. As a result of defendant LUCIEN'S leaving the scene without providing his information or insurance information, plaintiffwas forced to file a claim with MVAIC who provides minimum liability and basic PIP (No Fault) insurance in similar hit and run situations.l V/HEREFORE, plaintiff requests that the Court enter an order granting plaintiff partial summary judgment on the issue of liability, directing the clerk to enter order to that effect and granting such other and further relief as the Court may deem just and proper. Dated: New York, New York September 24,2019 Respectfully submitted, By: Adam te Law Office of Vaccaro & White A t t o r ney s for iff P I ai nt 17 Battery Place, Suite 204 New York NY 10004 212.577.3040 I In an arbitration proceeding filed by MVAIC against Geico, defendants' insurers, seeking reimbursement fiom Geico of monies MVAIC paid to plaintiff before plaintiff was able to obtain the identity of defendants, the arbitratorestablished that Geico was responsible to indemniô/ MVAIC on behalf of defendants' as their insured arising from the subject collision. (See attached ArbitrationDecision annexed as Exhibit E.) 5 5 of 5