SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------------------------------------------------------------------X INDEX NO.: 151162/15 BRIAN HEALEY and ANN HEALEY, Plaintiffs, -against- AFFIRMATION IN EAN HOLDING LLC, ELRAC LLC, JOHN BARBERIA, BRIAN SMITH, SPEEDO 1, INC., and SPEEDO LIMO, INC., SUPPORT FILE NO.: 784022 ---------------------------------------------------------------------X JOANN SICLARI-DIMONO, - against - Defendants, CASE ID: 80637 X Plaintiffs, INDEX NO.: 100653/16 EAN HOLDING LLC, ELRAC LLC, JOHN BARBERIA, BRIAN SMITH, SPEEDO 1, INC., and SPEEDO LIMO, INC., -----------------X Defendants, CASE ID: 830809 BRIAN SMITH, - against - Plaintiff, INDEX NO.: 150231/17 JOHN BARBERIA, EAN HOLDING LLC, and ELRAC LLC, Defendants, CASE ID: 84877 ---------------------------------------------------------------------X â â â â â â â â â â â â â â â â â X I, MICHAEL LACHMAN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under the penalties of perjury pursuant to CPLR 5 2106: 1. I am associated with BAKER, McEVOY, MORRISSEY & MOSKOVITS, P.C., attorneys for defendants BRIAN SMITH, SPEEDO 1, INC, and SPEEDO LIMO, INC, and as such 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 make this Affirmation, upon information and belief, in support of the instant Motion, which seeks relief in the form of an Order granting summary judgment in favor of 1 of 6
defendants BRIAN SMITH, SPEEDO 1, INC, and SPEEDO LIMO, INC, on the issue of liability and dismissing the Complaint and all cross claims and granting such other and further relief as this Court deems just and proper. 3. This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident, which occurred on September 5, 2015 at the intersection of Hyland Boulevard and Seguine Avenue, in the County of Richmond, City and State of New York. 4. Plaintiff commenced this action by service of the Summons and Verified Complaints, annexed hereto as "EXHIBIT A", as well as the Summons and Verified Complaints of the other two related actions. Defendants herein interposed a Verified Answer, annexed hereto as "EXHIBIT B", on or about April 26, 2016. Co-defendants also supplied a Verified Answer, annexed hereto as "EXHIBIT C". A copy of plaintiff's Bill of Particulars outlining her alleged injuries is annexed hereto as "EXHIBIT D." 5. 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; Salomone v. Yellow Taxi Corp.,., 242 N.Y. 251. However, in this case, there is clear evidence that indicates that the fault does not lie with defendants BRIAN SMITH, SPEEDO 1, INC, or SPEEDO LIMO, INC, but with co-defendant, JOHN BARBERIA. Accordingly, summary judgment in this case is appropriate. 6. According to the police report, the operator of vehicle 1, co-defendant JOHN BARBERIA, was driving westbound on Hyland Boulevard when it struck vehicle 2, driven by defendant BRIAN SMITH. Co-defendant JOHN BARBERIA then left the scene. Moreover, according to co-defendant JOHN BARBERIA's records regarding the criminal case arising out of the same accident, co-defendant pled guilty to reckless endangerment in the first degree and leaving the scene of the accident. He admitted to driving well above the posted speed limit, upwards of 65 to 75 miles per hour, and disregarded red lights and stop signs at the time that he struck defendant's vehicle. A copy of the police accident report as well as the criminal records 2 of 6
are annexed hereto as "EXHIBIT E". 7. Also, in plaintiff, passenger BRIAN HEALY's deposition, annexed hereto as "EXHIBIT F", he stated that he was a passenger in a vehicle driven by defendant BRIAN SMITH. The vehicle was driving down Seguine Avenue prior to the accident. See page 131 lines 15-20. Seguine Avenue was a two way roadway with one lane of travel in each direction. See page 132 lines 2-16. The vehicle approached the intersection of Seguine Avenue and Hylan Boulevard. See page 131 lines 15-20. Hylan Boulevard was a two way roadway with three lanes of moving traffic in each direction. Plaintiff did not recall anything unusual about the way defendant was driving, and does not recall the accident, as he lost consciousness as a result of it. See page 135 lines 18-25. He did however recall a motorcycle driving very vast across the intersection of Hylan Boulevard at the time. See Page 135 line 25, page 136 lines 2-5. His first memory after the accident was waking up in the intensive care unit of Staten Island University Hospital North. See page 135 lines 18-25, page 140 lines 3-21. 8. Also, in plaintiff, passenger JOANN SICLARI-DIMONO's deposition, annexed hereto as "EXHIBIT G", she stated that she, along with plaintiff BRIAN HEALY, was passenger in a vehicle driven by defendant BRIAN SMITH. See page 17 lines 10-21. The vehicle was traveling down Seguine Avenue and crossing the intersection with Hyland Boulevard at the time of the accident. See page 25 lines 6-25. The intersection was controlled by a traffic light. See page 26 lines 2-4. The traffic light was green for defendant BRIAN SMITH's vehicle at the time of the accident. See page 27 lines 6-12. Defendant BRIAN SMITH was not on the phone or radio at the time. See page 32 lines 12-24. Plaintiff JOANN SICLARI-DIMONO did not see the accident occur, and first became aware of it when she felt the heavy impact on the left side of the vehicle. See page 28 lines 7-15, page 29 lines 6-11, 18-25. Plaintiff lost consciousness as a result of the impact and eventually came to in the hospital. See page 34 lines 4-25. 9. In defendant BRIAN SMITH's deposition, annexed hereto as "EXHIBIT H", he states that he was traveling southbound on Seguin Avenue at under 30 miles per hour the time 3 of 6
of the accident. See page 36 lines 8-22, page 38 lines 1-2. There was a traffic light on the corner of the intersection with Hylan Boulevard. See page 38 lines 3-25. The light was green at the time, so defendant traveled through the intersection. See page 39 lines 1-21. That was when codefendant JOHN BARBERIA drove his vehicle through a red and struck defendant's vehicle. See page 39 lines 22-25, page 40 lines 1-18, page 42 lines 1-9. The vehicle then flipped over four times. See page 43 lines 17-22. Defendant BRIAN SMITH then lost consciousness as a result of the accident, and next awoke in the hospital. See page 44 lines 6-21. 10. Section 1110 of the Vehicle and Traffic Law provides that the driver of any vehicle shall obey the instructions of any official traffic control device. Section 1111 deals with traffic control devices. Section 1111(d)(1) specifically provides: "Traffic, except pedestrians, facing a steady circular red signal, unless to make such other movement as permitted by other indications shown at the same time, shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection, or in the event there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection and shall remain standing until an indication to proceed is shown except as provided in paragraph two of this subdivision." 11. Therefore, a driver who enters an intersection against a red light is in violation of this statute and negligent as a matter of law. 12. The driver who has a green light has the right to assume that the light is red for cross traffic and that other drivers will stop of the red light. 13. Based on defendant's sworn affidavit and plaintiffs' depositions, it is clear defendants BRIAN SMITH, SPEEDO 1, INC, and SPEEDO LIMO, INC, are not liable for this accident. Co-defendant JOHN BARBERIA is fully liable for this accident as he ran a steady red 4 of 6
light while speeding, entered the intersection and struck defendants' vehicle. 14. It is also important to note that a driver with the right of way is "entitled to assume that the operator of the van would obey traffic laws requiring her to yield." Platt v. Wolman, 29 A.D.3d 663 (2d Dep't 2006). (In Platt, the Appellate Division, Second Department dismissed plaintiff's Complaint because the defendant established that plaintiff's vehicle failed to "properly observe and yield to cross traffic before proceeding into the intersection.") 15. This accident occurred when co-defendant JOHN BARBERIA failed to stop at a steady red light but instead entered the intersection and struck defendants' vehicle. Accordingly, for the reasons stated above, defendants respectfully request that this Court issue an Order dismissing the Complaint and all other claims against defendants BRIAN SMITH, SPEEDO 1, INC, and SPEEDO LIMO, INC and direct that summary judgment be entered in their favor. 15. No prior application for the relief sought herein has been made. WHEREFORE, defendants BRIAN SMITH and SPEEDO LIMO, INC respectfully requests that the Court grant summary judgment, and dismiss the Complaint and cross claims and any other and further relief the Court deems just and proper. Dated: Brooklyn, New York December 27, 2017 Yours, etc., BAKER ce OY, MORRIÚSEY MO OV S, P.C. By: MICHAEL LACHMAN Attorneys for Defendant BRIAN SMITH, SPEEDO 1, INC, To: DEBRA S. REISER, ESQ. Attorney for Plaintiffs BRIAN HEALEY and ANN HEALEY 350 West 31st Street, Suite 401 and SPEEDO LIMO, INC, 1 Metrotech Center Brooklyn, New York 11201 (212) 857-8230 5 of 6
New York, New York 10001 BRAND CLICK 8 BRAND, PC Attorneys for Defendants EAN HOLDING LLC, ELRAC LLC, JOHN BARBERIA 600 Old Country Road, Suite 440 Garden City, New York 11530 FORTUNATO 8 FORTUANO, PLLC Attorneys for Plaintiffs JOANN SICLARI-DIMONO 26 Court Street, Suite 1301 Brooklyn, New York 11242 LUIS GUERRERO PLLC Attorneys for Plaintiff BRIAN SMITH 254 Seaman Avenue, Suite A3 New York, New York 10034 6 of 6