FILED: BRONX COUNTY CLERK 06/04/ :20 AM INDEX NO /2017E NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 06/04/2018

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1 TAF:tf File No.: (TAF)/ TP SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX X â â â â â â â â â â â YVETTE BERMUDEZ and ACHRAF DABOYA, Plaintiff(s), Index No.: /17 - against - REPLY AFFIRMATION DESIREE H OZUNA and MODESTO SANCHEZ, Return Date: June 8, 2018 Defendant(s) X â â â â â â â â â â â â â â â â DAVID A. BROWN, an attorney duly admitted to practice in the Courts of the State of New York, hereby affirms the following to be true under the penalty of perjury: 1. I am associated with CHEVEN, KEELY & HATZIS, ESQS., attorneys for the plaintiff on counter-claim YVETTE BERMUDEZ herein and from a review of the file maintained by this office, I am fully familiar with the facts and proceedings heretofore had. 2. I respectfully make this affirmation in reply to defendant MODESTO SANCHEZ's affirmation in opposition to defendant's motion for an Order granting summary judgment on the issue of liability pursuant to CPLR 3213, to plaintiff, YVETTE BERMUDEZ on the counter-claim. 3. Simply put, plaintiff on the counter claim YVETTE BERMUDEZ was not negligent for the happening of this accident, due to the fact that this accident occurred when the motor vehicle operated by the defendant MODESSTO SANCHEZ vehicle #3 struck the codefendnat DESIREE H. OZUNA's (veh #2) vehicle in the rear, which then struck plaintiff on the counter claim YVETTE BERMUDEZ's (veh #1) motor vehicle in the rear. It is well settled that a rear-end collision with a stopped or stopping motor vehicle demonstrates a prima facie 1 of 5

2 case of negligence as against the rear offending vehicle, in this case, the motor vehicles operated by the defendants, DESIREE OZUNA and MODESTO SANCHEZ. 4. The opposition of the defendant SANCHEZ attempts to create an issue of fact by asserting that there is a "material" issue and attempts to contend that the vehicle traveling ahead of him, vehicle #2, co-defendant OZUNA's "stopped short", causing the defendant SANCHEZ rear end vehicle #2 and then vehicle #2 co-defendant OZUNA to rear end plaintiff on the counter-claim YVETTE BERMUDEZ vehicle in the rear while BERMUDEZ was stopped. 5. However, it must be noted that the Affidavit of the plaintiff on the Counter-claim YVETTE BERMUDEZ annexed to plaintiff's motion papers as Exhibit "C" indicates that the plaintiff YVETTE BERMUDEZ was traveling on the exit ramp of the Cross Bronx Expressway As I was traveling on the exit ramp, my vehicle was moving at approximately 5-10 mph when my vehicle was suddenly and without warning struck in the rear bythe vehicle traveling behind me 6. Furthermore, as the accident occurred on an exit ramp, all operators traveling on the exit ramp had a duty to operate their vehicle appropriately for the traffic conditions, and should have maintained an appropriate speed an distance while traveling on the exit ramp. 7. Plaintiff Bermudez further stated that her vehicle was traveling 5-10 miles per hour on the exit ramp when her vehicle was struck in the rear by the vehicle #2 owned and operated by defendant OZUNA. OZUNA in the police accident report staed that his vehicle was stopped when struck in the rear by defendnat SANCHEZ's vehicle Ms. Bermudez was not responsible for and in no way could have avoided the instant collision. 2 of 5

3 8. Defendant fails to provide a non-negligent explanation for this accident, and instead offers a blanket explanation that co-defendant OZUNA suddenly stopped. Obviously, defendants SANCHEZ was following too closely and was not paying attention to the road in front of him and was therefore unable to prevent his vehicle from striking co-defendant's vehicle in the rear. Clearly there is no material issue of fact concerning how the accident occurred since no contradictory evidence is offered and the case law alleging an abrupt stop is not applicable. 9. Defendant's not only fail to provide a non-negligent explanation for this accident, they also fail to provide evidence in admissible form in support of their argument. The only evidence submitted by the defendants is a self -serving attorney affirmation. 10. The evidence is clear and uncontroverted and demonstrates that defendant SANCHEZ (vehicle #3) struck the rear of defendant OZUNA's (vehicle #2) which then struck the rear of plaintiff BERMUDEZ's vehicle (vehicle #1). The defendant SANCHEZ and OZUNA had a duty to maintain a reasonably safe rate of speed and to maintain control of this vehicle and to exercise reasonable duty and care to avoid colliding with the plaintiff's vehicle. The defendant failed to do so and have not raised any material issues of fact as to the defense or evidence of negligent conduct on the part of the plaintiff on the counter-claim BERMUDEZ. 11. Accordingly, plaintiff on the counter-claim BERMUDEZ is entitled to summary judgment on the issue of liability. WHEREFORE, your affirmant respectfully requests that this Honorable Court enter an Order granting Summary Judgment against defendants on the issue of liability and dismiss 3 of 5

4 the Counter-claim as against plaintiff YVETTE BERMUDEZ, and for such other and further relief as this Court may deem to be just and proper. Dated: New York, New York June 1, ( DA ID. B WN, ESQ. To: See Affidavit of Service for Distribution List. 4 of 5

5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX YVETTE BERMUDEZ, ACHRAF DABOYA, Plaintiff(s) -against- INDEX NO.: /17 DESIREE H OZUNA, MODESTO SANCHEZ, Defendant(s).. REPLY AFFIRMATION CHEVEN, KEELY & HATZIS, ESQS. Attorneys for plaintiff on counter-claim YVETTE BERMUDEZ 40 Wall Street, 12th floor New York, NY (212) TAF:tf File No.: (TAF)/ TP CERTIFICATION The above referenced items are hereby certified pursuant to 22 N.Y.C.R.R a. Dated: New York, New York 's June 1, 2018 D Vl A. OWN, ESQ. 5 of 5