FILED: BRONX COUNTY CLERK 04/21/ :32 AM INDEX NO /2013E NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/21/2015

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1 FILED: BRONX COUNTY CLERK 04/21/ :32 AM INDEX NO /2013E NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/21/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X Index #: 20116/2013E ROSSI CASTRO and KATHERINE RODRIGUEZ, AFFIRMATION IN OPPOSITION Plaintiffs, TO MOTION FOR SUMMARY - against - JUDGMENT BY PLAINTIFF ON THE COUNTER-CLAIM JOSE LIZ, KJM TRANS INC., KLEBER ALVAREZ and MERCHANT FUNDING SERVICES CORP., Defendants. File #: Case ID: X Nishi Rajan, an attorney at law, duly admitted to practice before the Courts of the State of New York, affirms the following to be true under the penalties of perjury, pursuant to CPLR 2106: 1. I am associated with BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C., attorneys for the defendants JOSE LIZ and KJM TRANS INC herein, and am fully familiar with the facts and circumstances of this action as set forth, based upon the contents of the file maintained in this office. 2. I respectfully submit this Affirmation in Opposition to plaintiff on the counter-claim s motion for summary judgment on liability on the grounds that (a) there exist triable issues of fact which do not warrant a finding of summary judgment against defendants and (b) it is premature discovery is still outstanding on the issue of the brake failure of defendant s vehicle which is necessary to establish a non-negligent explanation for the occurrence of the accident herein. 3. This action arises out of a motor vehicle accident, which occurred on February 6, 2011 on Broadway and West 169 th Street, New York, New York. 4. It is respectfully stated that the unavoidable slickness of the roadway due to snow/slush and ice and unexplainable brake failure with the defendant s vehicle played a factor in this accident s occurrence and is a bona fide non-negligent explanation for the accident. The courts of this state have held in numerous cases that

2 summary judgment is not warranted in automobile negligence actions when there exists a mechanical failure and there is no evidence of any speeding or negligent actions on behalf of the defendant. 5. It was established in Barile v. Lazzarini, 222 A.D.2d 635, 635 N.Y.S2d 694, that the operator is required to rebut the inference of negligence created by the unexplained rear-end collision and excuse the collision either through a mechanical failure, or a sudden stop of the vehicle ahead, or an unavoidable skidding on a wet pavement, or any other reasonable cause. If the operator cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgment as a matter of law. 6. There was indeed a mechanical failure - brake failure as well as slick/snowy and slushy road conditions. Annexed as Exhibit A is the MV-104 of defendant-driver Mr. Liz who stated therein that his brakes failed due to the snow/slush on the roadway and skidded. 7. The aforesaid establishes a non-negligent explanation for the accident s occurrence and the failure of plaintiffs to establish a prima facie case of entitlement to judgment as a matter of law. Our office has attempted to locate Mr. Liz to secure him for a deposition. We have assigned this matter to an outside investigation company. Our records show Mr. Liz no longer works for the livery company he had been working for in 2011 at the time of this accident and that he is old and may not be residing at the address we had last listed for him. Mr. Liz is not aware of this lawsuit and should have the opportunity to testify in his defense. 8. In addition to rebutting the inference of negligence, other case law in this area establishes that negligence is not assigned in automobile accidents where there exists a question or explanation of mechanical failure or skidding or sliding due to road conditions. 9. For example, in Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 216 N.E.2d 324, 269 N.Y.S.2d 115 and the case of Carter v. Castle Electric Contracting Co., 26 A.D.2d 83, 271 N.Y.S.2d 51. there should be more legal flexibility on what is negligence as applied to the control of moving vehicles and the

3 question left open to factual judgments of the jury where the record shows a skid, or the explanation for a skid, or a car on the wrong side of the road, or the explanation of why it is there, or the need for the passenger in a car to act in relation to its operation. 10. The Court expressly stated in the case of Phelps v. Fiodilino, 67 A.D.2d 1032, 413 N.Y.S.2d 484) evidence sustained finding that accident was due solely to defendant s skidding on a patch of ice, which, in and of itself, was not negligence. 11, In Phelps plaintiff slowed down and stopped and defendant applied his brakes in an attempt to stop, but there was a patch of ice and there was contact between the two vehicles. 12. Here, like in Phelps, the defendant had applied his brakes but through a condition not his fault, was unable to stop and a rear-end collision occurred. As such, were not negligent per se. 13. As seen in Carter, Pfaffenbach, and Phelps, the courts have found defendants not negligent, or the issue of negligence to be left to a jury, when an operator of a vehicle skid on a slippery road and struck another vehicle. The same rationale should be applied to this action as defendant was not speeding, and applied his brakes. As such, plaintiff s motion for summary judgment must be denied. 14. It is well established that the party seeking summary judgment must make a prima facie showing of entitlement to summary judgment as a matter of law, tendering sufficient proof to eliminate material issues of fact, Winegrad v. New York University Medical Center, 64 NY2d 851, 853, 487 NYS 2d 316, 476 NE 2d 642, and summary judgment is generally limited to those cases that are devoid of any conflict of evidence see Ugarriza v. Schmieder, 46 NY2d 471, , 414 NYS 2d 304, 386 NE 2d Further, in Ayotte v. Gervasio, 81 NY2d 1062, 1063, 601 NYS 2d 463, 619 NE 2d 400, the Court indicated that regardless of the sufficiency of the opposing papers, in the absence of admissible evidence sufficient to preclude any issue of fact summary judgment should be denied.

4 15. The law is well settled that a motion for summary judgment should be granted only rarely in an automobile negligence case. See, Andre v Pomeroy, 35 N.Y.2d 131, 362 N.Y.S.2d 13 (1974); Connell v Buitkant, 17 A.D.2d 944, 234 N.Y.S.2d 336 (1st Dept., 1962); Schneider v Miecznikowski, 16 A.D.2d 177, 226 N.Y.S.2d 944 (4th Dept, 1962). 16. Summary judgment may not properly be invoked in automobile accident cases, except in rare instances because very often there is a question of whether defendant-driver has exercised due care under the circumstances and whether the accident was unavoidable, judging from the surrounding circumstances.. Ortiz v. Knighton, 14 A.D.2d 679, 219 N.Y.S.2d 802; Morales v. River, 14 A.D.2d 752, 220 N.Y.S.2d 489 (driver's due care). 17. As shown herein above, a jury may find that the accident was unavoidable due to brake failure and skidding on the wet road. 18. Even if the Court were to find that there is no dispute as to the physical facts of the accident, summary judgment is normally not granted, Zeman v. Dewes, 35 A.D.2d 940, 316 N.Y.S.2d 579; Gerard v. Inglese, 11 A.D.2d 381, 206 N.Y.S.2d Summary judgment is a drastic remedy because it deprives the litigants of their day in Court and it should only be employed when there is no doubt as to the absence of a triable issue of fact. Ugarriza v Schmeider, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979). 20. On a motion for summary judgment, the Courts of this State engage in issue finding and not issue determining. Thus, where there appears to be a dispute as to an issue of material fact, as is the case here, summary judgment is not granted and a plenary trial is ordered. Goodman v. Goodman, 62 A.D.2d 939, 404 N.Y.S.2d 3 (1st Dept. 1978).

5 21. It is respectfully pointed out to the Court that in an automobile negligence action, the question of fault is ordinarily a question of fact to be determined by the jury. Foltis Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455; Salomone v. Yellow Taxi Corp., 242 N.Y. 251; 151 N.E.2d 442. Further, the question of the credibility of the parties involved is in the exclusive domain of the jury. Sorokon v. Food Fare Stores, 51 A.D.2d 592, 378 N.Y.S.2d 492; Petrofsky v. Drucks, 16 A.D.2d 690, 227 N.Y.S.2d Therefore, it is respectfully requested that this Honorable Court deny movant s motion in its entirety. 23. And lastly, should this court decide to grant the plaintiff s application, this matter should proceed to a full trial on damages and serious injury as defendants are entitled to contest the alleged damages plaintiff claims and the alleged serious injury issues. WHEREFORE, for all the reasons aforesaid it is respectfully requested that this Court issue an Order denying plaintiff s motion in its entirety and for such other and further relief as to this Court may seem just and proper. Dated: April 21, 2015 BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C. Brooklyn, New York By: Nishi Rajan, Esq. Attorneys for Defendants JOSE LIZ & KJM TRANS INC. One MetroTech Center Brooklyn, New York To: KAY & GRAY Attorneys for Plaintiff on the Counter-Claim Rossi Castro 875 Merrick Avenue Westbury, New York (516) GENTILE & ASSOCIATES Attorneys for Plaintiffs 233 Fifth Avenue, Suite 4A New York, New York 10016

6 STATE OF NEW YORK ) ) : SS : COUNTY OF KINGS ) AFFIRMATION OF SERVICE BY MAIL NISHI RAJAN, an attorney duly admitted to practice law before the Courts of the State of New York, affirm the following to be true to under the penalty of perjury pursuant to CPLR 2106: That I am not a party to this action; am over 18 years of age, and reside in Westchester County, New York. That on April 21, 2015 I served the within AFFIRMATION IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF ON THE COUNTER-CLAIM upon the attorneys listed below, at his/her/its listed addresses which were so designated by said attorneys for said purpose, by depositing a true copy of same enclosed in a post paid properly addressed wrapper in a post office under the exclusive care and custody of the U.S. Postal Service within the State of New York. To: KAY & GRAY Attorneys for Plaintiff on the Counter-Claim Rossi Castro 875 Merrick Avenue Westbury, New York (516) GENTILE & ASSOCIATES Attorneys for Plaintiffs 233 Fifth Avenue, Suite 4A New York, New York Affirmed: April 21, 2015 NISHI RAJAN, ESQ.

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X ROSSI CASTRO and KATHERINE RODRIGUEZ, - against - Plaintiffs, JOSE LIZ, KJM TRANS INC., KLEBER ALVAREZ and MERCHANT FUNDING SERVICES CORP., Defendants X AFFIRMATION IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF ON THE COUNTER-CLAIM BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C. Attorneys for Defendants One MetroTech Center Brooklyn, New York (212) To: Attorney(s) for: Service of a copy of the within is hereby admitted. Dated,... Attorney(s) for