FILED: NEW YORK COUNTY CLERK 07/26/ :15 PM INDEX NO /2015 NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 07/26/2018

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1 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK x LISA WILDENBERGER and BRIAN CASHIN, INDEX NO.: /15 Plaintiff(s), AFFIRMATION IN -against- OPPOSITION TO PLAINTIFF'S MOTION MAURICE MILLIEN, ROYALBENGAL TAXI CORP., FOR SUMMARY and CITY OF NEW YORK, JUDGMENT X Defendant(s). â â â â â â â â â â OLGA ALEINIK, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the truth of the following upon information and belief: 1. That I am associated with ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF, & CARONE LLP attorneys for defendants MAURICE MILLIEN and ROYALBENGAL TAXI CORP., herein and, as such, I am fully familiar with the pleadings and proceedings had herein based upon a review of the file maintained by this office. 2. That I make this Affirmation in Opposition to motion seeking summary judgment on the issue of liability by Plaintiff LISA WILDENBERGER. 3. This motion must be denied in its entirety because same as Plaintiff failed to prove that Defendant MAURICE MILLIEN was negligent, to the contrary, the police report annexed to Plaintiff's motion unequivocally states that Defendant MILLIEN, same as Plaintiff, was following the directions of the traffic officers when proceeding to enter the intersection, and their contradictory directions caused his vehicle to strike passenger's side of Plaintiff s vehicle. There is an existence of material and enuine issues of fact 1 of 7

2 regarding the causation of Plaintiff's damages. Therefore, Plaintiff's motion must be denied. 4. Plaintiff Attached police report as Exhibit A, therefore, Plaintiff waived any objections to its admissibility. The police report introduced by the Plaintiff confirms that there was no negligence on the part of Defendant MILLIEN, as he was following the directions of the traffic officers, which appeared to be contradictory. As the result of these contradictory signals by the officers the two vehicles collided. 5. Furthermore, Plaintiff failed to show that she was free from comparative negligence. Ms. WILDENBERGER testified in her deposition (annexed to Plaintiff's motion as Exhibit G) that she saw Mr. MILLIEN's vehicle coming from her right for several seconds before the accident occurred (See P. 37 lines: 10-25; p.38 lines: 1-12), however, she did not apply her breaks or tried to avoid collision in any other way. Under New York case law an operator of a motor vehicle has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident. See Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710; Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545, Zweeres v Materi, 94 AD3d 1111, 1111 [2d Dept 2012]. 6. In determining whether or not there are factual issues, the non-moving party's pleadings and papers must be accepted as true, and the decision must be made on the version of the facts most favorable to the non-moving party. Dowsey v. Megerian, 121 AD2d 497 (2d Dept. 1986). The drastic remedy of summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the issue is arguable. Ugarizza v. Schmieder, 4 NY2d 471(1979). 2 of 7

3 7. Pursuant to CPLR 3212, a motion for summary judgment "shall be granted if, upon all the 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 of any party." The motion shall be denied "if any party shall show facts sufficient to require a trial of any issue of fact." 8. It has long been settled that in order to obtain summary judgment, a moving party must come forward with admissible evidence showing the lack of merit to his opponent's cause of action. Gilbert v. Federal Ins. Co., 70 NY2d 966 (1988). However, before summary judgment may be granted, it must clearly appear that there are no triable issues of fact. Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 (1968); DiMenna & Sons, Inc. v. City of New York, 301 NY 118 (1950). Summary judgment is essentially the procedural equivalent of a trial, Falk v. Goodman, 7 NY2d 87 (1959), and a court is not authorized to try factual issues in a summary matter. Esteve v. Abad, 271 AD 725 Dept. 1947). 9. The function of the court on a motion or cross-motion for summary judgment is that of issue finding, not issue resolution. Decision Concepts, Inc. Citibank, N A., 91AD2d 965 Dept 1983); Esteve v. Abad, supra. In exercising that function, the court must construe evidence presented in a light most favorable to the non-moving party. McLaughlin v. Thaima Realty Corp., 161 AD2d 383 (1st Dept 1990); Waldron v. Wild, 96 AD2d 190 (4th Dept 1983). In fact, the court must accept as true the evidence submitted by the party opposing said motion. McLaughlin v. Thaima Realty Co., 161 AD2d 383(1st Dept. 1990); 8'eiss v. Garfield, 21 AD2d 156 (2d Dept 1964). 3 of 7

4 10. Summary judgment is a drastic remedy, and should not be granted when there is an_y doubt as to the existence of a triable issue of fact or where such an issue is even arguable. Falk v. Goodman, supra; Lindgren v. NYC Housing Auth., 269 AD2d 299 Dept 2000); Rose v. DaEcib USA, 259 AD2d 258 (1st Dept 1999); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Gale v. Kessler, 93 AD2d 744 Dept 1983); Holender v. Fred Cammann Productions, Inc., 78 AD2d 233 Dept 1980); Pirelli v. Long Island RR, 226 AD2d 166 Dept 1996)(remedy is drastic, not to be invoked where issue is even arguable). Similarly, summary judgment must be denied where there exist questions of law which turn upon questions of fact. Meadowbrook Nat. Bank of Freeport v. Ferkin, 303 NY 853 (1952); G.A.C. Service Corp. V. DeRuvo, 27 Misc.2d 592 (Sup. Ct. 1961). 11. Given all of the foregoing, Plainitiff's motion seeking summary judgment on the issue of liability should be denied in its entirety as a matter of law. WHEREFORE, it is respectfully requested that Plaintiff's motion seeking summary judgment be denied in its entirety together with such other and further relief as to this Court deems just and proper. Dated: Brooklyn, New York July 26, 2018 Yours, ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF, & CARONE LLP 4 of 7

5 ÓAleinik g Attorneys for Defendant(s) MAURICE MILLIEN and ROYALBENGAL TAXI CORP. One MetroTech, Suite 1701 Brooklyn, New York (718) File: Z1920 TO: Miller Eisenman & Kanuck, LLP Attorneys for Plaintiff(s) 450 Seventh Avenue, Suite 1400 New York, New York Fax: Zachary Carter Corporation Counsel Attorneys for Defendant CITY OF NEW YORK 100 Church Street New York, New York (212) Law Dept 4: of 7

6 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ).ss: COUNTY OF KINGS ) I, Jasmine Fermin being duly sworn, deposes and says: Deponent is not a party to this action; is over the age of 18 years, and resides in Kings County, New York. On July 26, 2018 deponent served within AFFIRMATION IN OPPOSITION x By mailing same first class mail in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service within the State of New York, addressed(s) as indicated below: TO: Miller Eisenman & Kanuck, LLP Attorneys for Plaintiff(s) 450 Seventh Avenue, Suite 1400 New York, New York Fax: Zachary Corporation Carter Counsel Attomeys for Defendant CITY OF NEW YORK 100 Church Street New York, New York (212) Law Dept #: Qt'<Vvi Jasmine Fermi Conurnssior;er of Dmg I Comm - ssion Expires p. ~ ) Oc.)Ci~ ',r ',. ~: c, 18 26d' 26 Day of Jul, 2018 Notary Public Our file¹: Z of 7

7 INDEX NO.: /15 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X â â â â â â â â â LISA WILDENBERGER and BRIAN CASHIN, Plaintiff(s), -against- MAURICE MILLIEN, ROYALBENGAL TAXI CORP., and CITY OF NEW YORK, Defendant(s) X â â â â â â â â â â â â â AFFIRMATION IN OPPOSITION ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, FORMATO, FERRARA, WOLF & CARONE, LLP Attorneys for Defendant(s) MAURICE MILLIEN and ROYALBENGAL TAXI CORP. 1 MetroTech Center, Suite 1700 Brooklyn, New York T: (718) File No.:Z of 7