Preview
FILED: KINGS COUNTY CLERK 07/18/2019 09:30 PM INDEX NO. 519850/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019
SUPREME COURT STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------X
NOTICE OF
ALICIA CULTRARO,
MOTION AND
AFFIRMATION IN
Plaintiff,
SUPPORT
-against-
519850/2018
THE CITY OF NEW YORK, THE NEW YORK
CITY DEPARTMENT OF PARKS AND
RECREATION, and ANITA M. CAMPBELL
Defendant.
-------------------------------------------------------------X
PLEASE TAKE NOTICE, that upon the annexed affirmation of GARY P.
KAUGET duly affirmed on July 18, 2019, the exhibits annexed hereto, and upon all of the
pleadings and prior proceedings had herein, the undersigned will move this Court at
Courthouse located at 360 Adams St, Brooklyn NY on the 21st day of August , 2019
at 9:30am, or as soon thereafter as counsel can be heard, for an order (1) pursuant to CPLR
§3212 granting Summary Judgment on the issue of liability, and for such other and further
relief as this Court deems just and proper.
PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are to
be served upon the undersigned not less than seven (7) days prior to the return date herein.
Dated: Brooklyn, New York
Yours, etc.
Gary P. Kauget
GARY P. KAUGET, P.C.
Attorney for Plaintiff
9201 Fourth Avenue, Suite 707
Brooklyn, New York 11209
(718) 833-2496
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FILED: KINGS COUNTY CLERK 07/18/2019 09:30 PM INDEX NO. 519850/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ALICIA CULTRARO.
Plaintiff, AFFIRMATION IN
SUPPORT
-against-
519850/2018
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF PARKS AND RECREATION,
and ANITA M. CAMPBELL
Defendants.
----------------------------------------------------------------------X
GARY P. KAUGET, an attorney duly admitted to practice before the Courts of the State of
New York affirms the truth of the following:
1. I am an attorney for the plaintiff and duly familiar with the facts and
circumstances herein. I submit this affirmation in support of the Plaintiff's Motion seeking
Summary Judgment on liability.
2. This is a negligence action to recover damages for serious injuries sustained by
Plaintiffs as a result of an accident which occurred on September 28, 2017. Attached hereto as
Exhibit “A” is a copy of the Police Report. A certified report was not available through the DMV.
3. Plaintiff served the Summons and Complaint on or about October 3, 2018,
Defendants served their Answer thereafter. Plaintiff served the Bill of Particulars on January 5,
2018. All pleadings attached herein as Exhibit “B”.
4. A motion for Summary Judgement on liability shall be granted pursuant to CPLR
Section 3212 where the moving party can demonstrate to the Court that there is no defense to
the cause of action.
5. This action stems from a motor vehicle collision on September 28, 2017 when
the Plaintiff ALICIA CULTRARO was driving on Belt Parkway. While stopped in traffic
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FILED: KINGS COUNTY CLERK 07/18/2019 09:30 PM INDEX NO. 519850/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019
on the Belt Parkway Plaintiff’s vehicle was struck from behind by the vehicle owned and
operated by Defendants. The force of the impact pushed Plaintiff’s vehicle into the vehicle
in front of it. See Plaintiff’s affidavit attached as exhibit C.
6. The Second Department has held that a rear end collision establishes a prima
facie case of negligence on the part of the operator of the second vehicle. The Second
Department has consistently held that when a driver of an automobile approaches another
automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed
and control over his or her vehicle, and to exercise reasonable care to avoid colliding with
the other vehicle. Power v. Hupart, 260 A.D.2d 458, 688 N.y.S2d 194 (2nd Dept. 1999).
7. Even if the defendant claims that the plaintiff's vehicle came to an abrupt
stop, a claim that the lead vehicle made a sudden stop, standing alone, is insufficient to
rebut the presumption of negligence on the part of the following vehicle. See Kastritsios v
Marcello, 84 AD3d 1174 (2d dept. 2011); Franco v Breceus, 70 AD3d 767 (2d Dept.
2010); Mallen v Su, 67 AD3d 974 (2d Dept. 2009).
8. As outlined in the Plaintiff’s sworn Affidavit, attached herein as Exhibit C, the
Plaintiff has established that the Defendant rear-ended the Plaintiff’s vehicle while that
vehicle was stopped for a red light on Belt Parkway The evidence indicates that there is no
excuse for the causing of this accident besides the Defendant’s negligence in following
Plaintiff’s vehicle too closely and failing to stop before rear-ending her vehicle.
9. In light of the above, it is respectfully requested that the Summary Judgment
on the issue of liability be granted to the plaintiff pursuant to New York CPLR Section
3212.
10. No prior request for the relief requested herein has heretofore been made.
WHEREFORE, it is respectfully requested that the Plaintiff’s motion for
Summary Judgment on liability pursuant to New York CPLR Section 3212 be granted in
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NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019
all respects, together with such other and further relief as this Court deems just and
proper.
Dated: March 19, 2018 Gary P. Kauget
Gary P. Kauget, Esq.
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Preview
FILED: KINGS COUNTY CLERK 07/18/2019 09:30 PM INDEX NO. 519850/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019 SUPREME COURT STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------X NOTICE OF ALICIA CULTRARO, MOTION AND AFFIRMATION IN Plaintiff, SUPPORT -against- 519850/2018 THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, and ANITA M. CAMPBELL Defendant. -------------------------------------------------------------X PLEASE TAKE NOTICE, that upon the annexed affirmation of GARY P. KAUGET duly affirmed on July 18, 2019, the exhibits annexed hereto, and upon all of the pleadings and prior proceedings had herein, the undersigned will move this Court at Courthouse located at 360 Adams St, Brooklyn NY on the 21st day of August , 2019 at 9:30am, or as soon thereafter as counsel can be heard, for an order (1) pursuant to CPLR §3212 granting Summary Judgment on the issue of liability, and for such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE, that answering papers, if any, are to be served upon the undersigned not less than seven (7) days prior to the return date herein. Dated: Brooklyn, New York Yours, etc. Gary P. Kauget GARY P. KAUGET, P.C. Attorney for Plaintiff 9201 Fourth Avenue, Suite 707 Brooklyn, New York 11209 (718) 833-2496 1 of 4 FILED: KINGS COUNTY CLERK 07/18/2019 09:30 PM INDEX NO. 519850/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------X ALICIA CULTRARO. Plaintiff, AFFIRMATION IN SUPPORT -against- 519850/2018 THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, and ANITA M. CAMPBELL Defendants. ----------------------------------------------------------------------X GARY P. KAUGET, an attorney duly admitted to practice before the Courts of the State of New York affirms the truth of the following: 1. I am an attorney for the plaintiff and duly familiar with the facts and circumstances herein. I submit this affirmation in support of the Plaintiff's Motion seeking Summary Judgment on liability. 2. This is a negligence action to recover damages for serious injuries sustained by Plaintiffs as a result of an accident which occurred on September 28, 2017. Attached hereto as Exhibit “A” is a copy of the Police Report. A certified report was not available through the DMV. 3. Plaintiff served the Summons and Complaint on or about October 3, 2018, Defendants served their Answer thereafter. Plaintiff served the Bill of Particulars on January 5, 2018. All pleadings attached herein as Exhibit “B”. 4. A motion for Summary Judgement on liability shall be granted pursuant to CPLR Section 3212 where the moving party can demonstrate to the Court that there is no defense to the cause of action. 5. This action stems from a motor vehicle collision on September 28, 2017 when the Plaintiff ALICIA CULTRARO was driving on Belt Parkway. While stopped in traffic 2 of 4 FILED: KINGS COUNTY CLERK 07/18/2019 09:30 PM INDEX NO. 519850/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019 on the Belt Parkway Plaintiff’s vehicle was struck from behind by the vehicle owned and operated by Defendants. The force of the impact pushed Plaintiff’s vehicle into the vehicle in front of it. See Plaintiff’s affidavit attached as exhibit C. 6. The Second Department has held that a rear end collision establishes a prima facie case of negligence on the part of the operator of the second vehicle. The Second Department has consistently held that when a driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. Power v. Hupart, 260 A.D.2d 458, 688 N.y.S2d 194 (2nd Dept. 1999). 7. Even if the defendant claims that the plaintiff's vehicle came to an abrupt stop, a claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the following vehicle. See Kastritsios v Marcello, 84 AD3d 1174 (2d dept. 2011); Franco v Breceus, 70 AD3d 767 (2d Dept. 2010); Mallen v Su, 67 AD3d 974 (2d Dept. 2009). 8. As outlined in the Plaintiff’s sworn Affidavit, attached herein as Exhibit C, the Plaintiff has established that the Defendant rear-ended the Plaintiff’s vehicle while that vehicle was stopped for a red light on Belt Parkway The evidence indicates that there is no excuse for the causing of this accident besides the Defendant’s negligence in following Plaintiff’s vehicle too closely and failing to stop before rear-ending her vehicle. 9. In light of the above, it is respectfully requested that the Summary Judgment on the issue of liability be granted to the plaintiff pursuant to New York CPLR Section 3212. 10. No prior request for the relief requested herein has heretofore been made. WHEREFORE, it is respectfully requested that the Plaintiff’s motion for Summary Judgment on liability pursuant to New York CPLR Section 3212 be granted in 3 of 4 FILED: KINGS COUNTY CLERK 07/18/2019 09:30 PM INDEX NO. 519850/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/18/2019 all respects, together with such other and further relief as this Court deems just and proper. Dated: March 19, 2018 Gary P. Kauget Gary P. Kauget, Esq. 4 of 4