SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND -------------------------------------------------------X Index No.: 151754/2016 MICHAEL SHAKHVOROSTOV, Plaintiff, AFFIRMATION IN OPPOSITION MAKSIM LAGODA and YURIY LAGODA, Return Date: 2/22/18 -------------------------------------------------X Defendants. â â ANDREA E. FERRUCCI, an attorney duly admitted to practice in the Courts of the State of New York, affirms the following under the penalty of perjury: 1. I am an associate with the law firm of PICCIANO 5 SCAHILL, P.C. attorneys for the defendants, MAKSIM LAGODA and YURIY LAGODA, and as such I am fully familiar with the facts, circumstances and pleadings in the -against- abovecaptioned matter. 2. This affirmation is submitted herewith in opposition to plaintiff, MICHAEL SHAKHVOROSTOV's, Motion seeking Summary Judgment, on the issue of liability. 3. As an initial matter, Plaintiff's Motion was procedural defective as it failed to comply with CPLR 2214. CPLR 2214 states: (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or 1 of 8
responding affidavits shall be served at least one day time." before such (Emphasis supplied.) In the instant matter, Plaintiff's Motion for Summary Judgment, was served on February 15, 2018, only seven (7) days before the February 22, 2018 return date, a time frame which also included the Federal Holiday of President's Day (February 19, 2018). Since Plaintiff failed to comply with the service requirements of CPLR 2214 (b), the instant Motion for Summary Judgment, should be denied in its entirety. 4. Assuming, arguendo, the Court disregards the procedural defects of Plaintiff's Motion papers, the following is submitted in opposition. "Summary judgment is a drastic remedy, to be granted only where the moving party has "tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp.,., 68 NY 2d 320, 324, 501 NE 2d 572, 508 NYS 2d 923 [1986]) and then only if, upon the moving party's meeting of this burden, the non-moving party fails "to establish the existence of material issues of fact which require a trial on the action" party' (d.) The moving party's "[f]ailure to make [a] prima facieshowing [of entitiement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers"(m. [emphasis added])." Vega v. Restani Construction Corp.,., 18 NY 3d 499 (2012). The moving party in this matter has failed to establish its prima facie entitlement to summary judgment. However, in the alternative, should the Court find that the moving party has shifted the burden, the remainder of this Affirmation addresses the merits of the motion. 5. "Negligence cases by their very nature do not usually lend 2 of 8
themselves to summary judgment." Uqarizza v. Schmieder, 46 N.Y.2d 471, 414, N.Y.S.2d 304 (1979). Since summary judgment deprives the litigant of its day in Court, it is considered a most drastic remedy, which should not be granted where there is any doubt as to the existence of a triable issue, or where the issue is even arguable.. 5 (197'I),' Andre v... Pomeroy, 35 N.Y. 2d 361 (1974); See Mosheyev v. Pilevsky, 283 A.D. 2d 469; 725 N.Y.S.2d 206 (2nd Dept.,., 2001); See Vanderwater v. Sears, 277 A.D. 2d 1056; 716 N.Y.S. 2d 495 (4th Dept., 2000). 6. The function of the Court upon a motion for summary judgment is issue finding, not issue determination. (See acta v. New York News, Inc., 95 AD 2d 325, 466 NYS 2d 321.). Upon a motion for summary judgment, the Court should draw all reasonable inferences in favor of the nonmoving party. Murdocca v. DiGiola, 264 A.D. 2d 509; 695 N.Y.S. 3d 366 (2nd 1999),' Dept., 1999); Pantote Big Alpha Foods, Inc. v. Schefman, 121 A.D.2d 295, 503 N.Y.S.2d 58 (1st Dept. 1986). Where the Court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied. (Daliendo v. Johnson, 147 A.D.2d 312, 543, N.Y.S.2d 987 (2d Dept. 1999)). 7. It is well recognized that negligence matters generally do not lend themselves to resolution by summary judgment since the very question of whether a defendant's conduct amounts to negligence or not is inherently a question of fact to be determined at the time of trial. Rivers v. Atomic Exterminating Corp.,., 210.2d A.D.2d 134, 621 N.Y.S.2d 2112 (1st Dept. 1994), Cahales v. Garber, 195 A.D.2d 585, 600 N.Y.S.2d 739 (2d Dept. 1993). 8. As an initial matter, plaintiff's affidavit vaguely asserts that the 3 of 8
photograph included in his affidavit shows a speed limit sign located on Manor Road in the direction where the subject vehicle was traveling. (See Plaintiff's Exhibit "D".) However, there is no indication that this speed limit sign was located anywhere near the subject accident location, and if it was controlling the portion of the roadway where the accident occurred. As such, it is not definitive on the issue of any speed limit where the accident occurred. 9. In this matter, plaintiff submitted the deposition testimony of defendant, MAKSIM LAGODA, which was insufficient to eliminate all triable issues of fact, thereby warranting the denial of the underlying motion. See Gause v. Martinez, 91 AD 3d 595 (2d Dept. 2012). As such, the motion must be denied in its entirety. 10. Mr. Lagoda testified that on February 26, 2016, he was involved in an accident while operating a 2006 Lexus, on Manor Road. (See Plaintiff's Exhibit "E," Pages 17-18, 29.) Prior to the accident, Mr. Lagoda's highest rate of speed was 40 miles per hour, but he applied his brakes before impact. (M. at pages 37-38.) Approximately fifty (50) meters after Mr. Lagoda was on Manor Road, it began to curve. (M. at page 36.) Mr. Lagoda was in the process of negotiating the turns in the roadway, when he observed a deer in his lane of travel. (Id. at pages 39, 42.) The deer was located between two turns. (ICI. at page 461.) As a result of the deer in the roadway, Mr. Lagoda took evasive maneuvers to avoid the deer causing him to leave the roadway. (Id. at pages 39-40, 42.) Mr. Lagoda swerved to the right to avoid the deer, and as a result struck a tree that was located on the ' "E" Plaintiff's Exhibit is missing page f6. As such, a copy of page 46, is annexed 4 of 8
right side of the road. (M. at pages 45.) Mr. Lagoda lost control of his vehicle after his rear tire went into the gravel portion of the roadway as he attempted to avoid the deer. (Id. at pages 47-48.) As Mr. Lagoda's vehicle skidded on the roadway towards on-coming traffic, he counter-steered to re-enter his lane of travel, causing him to strike the tree with the right portion of his vehicle. (Id. at pages 51-53.) The deer remained in the roadway during Mr. Lagoda's evasive maneuvers. (M. at page 54.) 11. Mr. Lagoda was faced with an emergency situation, not of his own making, when he was negotiating the numerous curves located on Manor Road, a deer was located in his lane of travel. As Mr. Lagoda observed the deer, within his lane of travel as he exited one curve and began to enter another curve, he attempted to take evasive maneuvers to avoid the deer which resulted in his loss of control of his vehicle. The reasonableness of Mr. Lagoda's actions when faced with the unexpected situation of a deer within his lane, that was not readily visible as he negotiated numerous turns, requires a tier of fact's determination as to the reasonableness of his actions. See Mazzarella v. McVeigh, 283 AD 2d 557 (2d Dept. 2001), which held: "In the early morning hours of November 14, 1998, the defendant was driving on an unpaved, unlit, rural road in Delaware County. The plaintiffs Thomas Mazzarella and John Petschauer were passengers in the defendant's car at the time. At some point, the defendant's vehicle left the road and went into a ditch, causing a tire to blow out and the vehicle to flip over. The plaintiffs thereafter commenced this action, alleging that the injuries sustained by Mazzarella and Petschauer were caused hereto, and made a part hereof as Exhibit "A". 5 of 8
by the defendant's negligence. At his examination before trial, the defendant testified that the car left the road when he swerved to avoid striking a deer, which was either "approaching from the left or... already standing in the middle of the ro_ag" iroad. The Supreme Court erred in granting the defendant's motion for summary judgment. "g under some rqasonable view of the evidence, an actor is confronted by a sudden and unforegeen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the instructed" jury, which should be appropriately (Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, Fitz- 327, 567 N.Y.S.2d 629, 569 N.E.2d 432; see, 232)." Gerald v. Rich, 251 A.D.2d 1017, 674 N.Y.S.2d (Emphasis supplied.) 12. Similar to this matter, the Court in Fitz-Gerald v. Rich, 251 AD 2d 1017 (4th Dept. 1998), held: "Supreme Court properly denied that part of motion seeking partial summary judgment on the issue of liability against defendant B.M.W. Financial Services, N.A., Inc. (BMW). Plaintiff' Plaintiff, a eri the back seat of an automobile driven by defendant Mark A. Santomassino, was injured when Santomassino allegedly swerved to avoid a deer and lost control of the automobile. The court properly refused to determine that BMW is vicariously liable as a matter of law, as the owner of the vehicle leased to Santomassino (See, Vehicle and Traffic Law 388). BMW's liability pursuant to Vehicle and Traffic Law 388 derives from the alleged negligence of Santomassino, and there are issues of fact concerning his alleged negligence. Whether the emergency doctrine applies is an issue of fact for trial(see, Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 326-327, 567 N.Y.S.2d 629, 569 N.E.2d 432, rearg. denied 77 N.Y.2d 990, 571 N.Y.S.2d 916, 575 N.E.2d 402; L ion Sh e, 187 A.D.2d 983, 590 N.Y.S.2d 6 of 8
615)." (Emphasis supplied.) 13. In this matter, it follows that a trier of fact must determine (1) if the emergency doctrine applies based upon the configuration of the roadway (and limited sight line) and the unexpected appearance of the deer in the roadway, and (2) if the defendant, LAGODA, acted reasonably when confronted with the unexpected emergency situation. Therefore, it follows that in this matter, Summary Sudgment must be denied as wholly inappropriate. To grant summary judgment would deprive the defendants, MAKSIM LAGODA and YURIY LAGODA, of their day in Court. WHEREFORE, the defendants, respectfully request that plaintiff, MICHAEL SHAKHVORSOTOV's, Motion be denied in all respects together with such other and further relief as to this Court shall deem just, necessary and proper. Dated: Bethpage, New York February 20, 2018 DREA. FE CI 7 of 8
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND Index No. 151754/2016 MICHAEL SHAKHVOROSTOV, Plainti f f, -against- MAKSIM LAGODA and YURIY LAGODA, Defendants. AF FIRMATION IN OPPOSITION PICCIANO & SCAHILL, P.C. Attorneys for Defendants MAKSIM LAGODA and YURIY LAGODA 1065 Stewart Avenue, Suite 210 Bethpage, New York 11714 (516) 294-5200 (516) 873-6229 Fax ATTORNEY CERTIFICATION Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorn y dmitted to practice in the courts of New York State, certifies that upon information and belief and responsib e in uiry, the contentions co tained in the annexed documents are not frivolous. Dated: February 20, 2018 A EA E. FERRU, ESQ. Please take notice O Notice of entry that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on ONotice of Settlement ^ that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named court, at on Dated: Bethpage, New York Yours, etc. PICCIANO & SCAHILL, P.C. Attorneys for Defendants MAKSIM LAGODA and YURIY LAGODA To: All Parties 1065 Stewart Avenue, Suite 210 Bethpage, New York 11714 (516) 294-5200 8 of 8