Supreme Court ofthe State of New York

County of Orange
-X Index No.: EF 007138/2017
Derrick Cooper,
Plaintiff, Notice of Motion for Summary Judgment
-against- CPLR § 3212(a) and (g)

UNFI Transportation LLC,and Justice Sandra B. Sciortino

Saul Amulfo Ruilova,
Defendants.
-X

PLEASE TAKE NOTICE that upon the annexed affirmation of Allan J. Aheame, Jr.,

Esq., dated September 6, 2018, and the prior pleadings and exhibits annexed thereto, the

attorneys for the Plaintiff will move this Court at Justice Sciortino's Part at the Courthouse

located at 285 Main Street, Goshen, NY 10924 on October 15, 2018, at 9:30 A.M. or as soon

thereafter as counsel can be heard for an Order pursuant to CPLR § 3212(a)

summary judgment as to the liability of the Defendants, the dismissal of affirm^l^ve defense^
and for such other relief as the Court deems necessary.

PLEASE TAKE FURTHER NOTICE that pursuant to CPLR § 2214(b), answering

5, if any, are required to be served upon the undersigned at least seven (7) days

before!the return date of this motion.

Dat^: New York, New York Certified pursuant to Court Rules 130-la
September 6,2018
The Aheame Law Firm,PLLC
Attorneyfor Plaintiff
24 Main Street, 2^^ floor
Warwick, NY 10990-1383
Tel: 845-986-2777

Allan J. Aheame, Jr., Esq.

TO:
Morrison Mahoney, LLP.
Attorneysfor Defendants
120 Broadway, Suite 1010
New York, NY 10271
Supreme Court of the State of New York
County of Orange
-X Index No.: EF 007138 / 2017
Derrick Cooper,

Plaintiff, Affirmation in Support ofPlaintiffs

Motion for Summary Judgment
-against- CPLR § 3212(a)and(g)

UNFl Transportation LLC,and

Saul Amulfo Ruilova,
Defendants.
X

Allan J. Ahearne Jr., an attorney admitted to practice before the Courts of this

State affirms pursuant to CPLR § 2106, under penalty of perjury, as to the truth of the

following:

1. Preliminary Statement: 1 am a partner associated with the firm representing the

Plaintiff and make this affirmation in support of this Motion for Summary Judgment on

liability against Defendants pursuant to CPLR § 3212(a) and CPLR § 3212(g) which

serves to limit issues of fact for trial, as well as striking the Affirmative Defenses as to:

• assumption of risk( Affirmative Defense);

• statute of limitations (2"^ Affirmative Defense);

• waiver of right to commence suit (3'"'' Affirmative Defense);

• false statements by the Plaintiff bars the case (4*^ Affirmative Defense);

• claims barred by absence of legal responsibility on the part ofthe Defendants (6'^^
Affirmative Defense);

• incident caused by acts or omissions ofa third party for whose conduct Defendants

are not legally responsible (7^'' Affirmative Defense);

 • failure to state a cause of action (10^'^ Affirmative Defense);

• failure to join a necessary party (ll"^ Affirmative Defense);

• justification of acts of Defendant (12^'^ Affirmative Defense);

• Plaintiffactually or implied his consent to the Defendants' 18-wheel-tractor-trailer

crashing into the rear of his vehicle (13'^' Affirmative Defense);

• culpable conduct and comparative negligence and assumption of risk (16^

Affirmative Defense);

• contractual indemnification (17^*^ Affirmative Defense); and

• sudden emergency (23'"'^ Affirmative Defense).

2. Factual Statement: This matter arises from an automobile-truck collision that

took place on May 17,2017, at approximately 5:14 p.m. on the "old" Tappan Zee Bridge,

approximately ICQ feet north of mile post marker 15.5 on said roadway,Route 1-87(also

known as the New York State Thruway)in the Town of Orangetown, Rockland County,

State of New York.

3. Plaintiffs and Defendants' vehicle were traveling generally westbound at the

location, coming from the east side ofthe Hudson River going toward Rockland County

when the Defendants' vehicle (18-Wheel-Tractor-Trailer) rear-ended Plaintiffs Acura

SUV automobile vehicle.

 0
ixiCA.
4. The action was commence^y the filing of a Summons and Verified Complaint
with the Clerk of the Court of Supreme Court, Orange County on September 7, 2017.

Issue was joined with the service of an Answer dated October 5, 2017. A Verified Bill

ofParticulars was served January 3, 2018.

5. ^Depositio on May 3, 2018 of Plaintiff; Defendant May 9, 2018 and

non-party Martin Bailey provided a notarized statement dated November 29, 2017 and

was deposed on August 2, 2018.

6. Exhibits; Attached hereto are the following Exhibits:

A. Summons and Conmlaint;

B. Answen^^fn Stipulation Amending Answer;

C. Bill of Particulars;

D. Transcript ofPlaintiff Deposition dated May 3,2018;

E. Transcript of Defendant Deposition dated May 9, 2018;

F. Affidavit of non-party witness, Martin Bailey;

G. Photographs from Plaintiffs deposition;

H. Photographs from Defendant's deposition;

I. Defendants' business record accident report; and

J. United States Department of Transportation Summary of Service

Regulations.
7. Summary of PlaintifTs Deposition Testimony:

a) The Plaintiff is a long-time professional bus driver, age approxi^tely 53

years old (Pages 10-13)and was returning home on the datiS^^^^g|^time
of loss.

b) The Plaintiff was heading west / north on the Tappan Zee Bridge (page
24).
c) Traffic was 34 to 45 mph, rush hour, Plaintiff initially was not sure if
traffic was stop-and-go but the flow slowed down and then picked up again, and
he remembered, after prodding, traffic never came to a full stop(Pages 25 - 26).
d) The day was sunny(Page 26).
e) Then something banged and there were two(2)guys in my vehicle(Page
37).
f) I had been moving before the bang when the truck hit me in the rear(Page

8. Summary of Defendant's Depo^k^ Testimony:

a) The Defendant^j3dmpany|^as his employer and^^p owned both the
tractor and trailer. (P^
b) Thd^pot was located in Montgomery, NY (off of Route 84 in Orange
County near the airport). (Page 7).
c) ^Driver generally worked fourteen-hour days and had done so on Monday
and Tuesday before the date of loss on a Wednesday. (Pages 8,11,15).
d) He arrived at the depot at 4:00 a.m. and left the depot at 5:00 a.m.(Page
9).
e) Left at 4:00 a.m., had to be back by 3:00 p.m.(Page 12).
f) The company had their own mechanics who maintained the tractors and
trailers. (Page 14).
 g) On Tuesday, the day before the incident, the Defendant Driver had
returned to the yard at 4:00 p.m. or 5:00 p.m.(Page 15)having left the depot at 5:00 a.m.
(Page 9).
h) Defendant Driver performed a pre-trip inspection and there were no
mechanical issues with either the tractor or trailer. (Pages 15-20).
i) During his use ofthe vehicle that day there were no mechanical problems.
(Pages 16-18, 21).
j) J^Tiriver had Vi hour lunch break at approximately 11:00 a.m. and he and an
assistant unloaded the truck.(Page 22).
k) Tappan Zee bridge had four(4)lanes going westbound, he was in the third
lane from the left, lane #3. (Pages 25-27) and remained in that lane from the time he
entered the bridge. (Page 27).
I) Nothing obstructed his view. (Page 29).
m) The sun or glare did not interfere with his operation ofthe vehicle. (Page
29).
n) In the 15-20 seconds before contact the radio was not on, he was not on
the phone and all he was doing was driving. (Pages 29, 30).
o) His speed at time ofimpact was approximately 15 mph.(Page 31).
p) Mr. Cooper's vehicle was in front of his truck the entire time he was on
the bridge. (Page 32).
q) No other vehicles contributed to the crash. (Page 32).
r) Traffic was stop and go and in a steady flow on the bridge. (Pages 33,
35), and traffic was steady at between 15-20 mph.(Page 43).
s) Defendant has a class "A" commercial license. (Page 34).
t) Mr. Cooper's car had been driving in the lane with the flow of traffic.
(Pages 35-36).
u) Impact was rear of Plaintiffs car and front of Defendant's tractor. (Page
36).
v) The business record accident report of Defendant states the Defendant
rear-ended another vehicle. (Pages 39-41, 45, 46).
 ,V\^ Wvi"T
w) Defendant was/^out three car lengths behind the Plaintiff vehicle, the
road was straight, the car^ front of Plaintiffs car had their brake lights on and were
either coming to a stoj/^r slowing down. (Pages 43-44).
x) BcfoA the crash Defendant Driver did not sound his horn, his brakes
locked up despit^t^feS Brakes,the vehicle did not skid, and the front ofhis vehicle struck
the rear of Plaintiffs car. (Page 53).

9. Summary of non-party factual presentation: Mr. Martin Bailey, a retired

N.Y.C.Police Department Detective provided an affidavit, annexed hereto. His affidavit

states, in sum:

a) Traffic was not heavy;

b) Traffic was moving well and smoothly;

c) There was no rain;

d) There was no adverse roadway conditions;

e) Plaintiffs vehicle did not change lanes;

f) Plaintiffs vehicle did not make sudden movements;

g) Mr. Bailey himself was in the lane to the right of the Plaintiff vehicle just

behind the Plaintiffs vehicle.

h) Plaintiffs car was going the same speed as the rest of traffic, no brake lights

were on before the crash;

i) Front of tractor trailer struck rear of Acura without warning;

j) No horn sounded and did not hear screeching of brakes; and

k) The tractor hit the rear ofthe Acura squarely.

10. Short argument as to legal implications of factual testimony: The testimony

ofthe parties and the non-party witness establishes that the front of Defendant's vehicle

struck the rear of the Plaintiffs vehicle, there were no phantom vehicles, no mechanical

failures, no emergency situations, no sudden stops or similar matters that might be an

excuse for the crash. Further, the testimony of the Defendant Driver shows that he had

been operating the vehicle in excess of the hours allowed under New York State and

Federal rules applicable to Commercial Drivers.

11. As such, summary judgment on liability in favor of the Plaintiff is supported by

both fact and law. Respectfully, it is proposed to this Court that there are no open issues

of fact to preclude summary judgment by this Court.

12. Summary Judgment Law: It is well settled that the proponent for a Motion for

Summary Judgment must make a primafacie showing of entitlement to judgment as a

matter oflaw by providing sufficient evidence demonstrate the absence of material issues

offact. See,Sillman v. Twentieth Century Fox Film Corp. 3,N.Y.2d 395(1957),Alvarez

V. Prospect Hospital, 68 N.Y.2d 320(1986). To obtain Summary Judgment,the moving

party must establish its claim or defense by tendering sufficient evidentiary proof, in

admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment

in Movant's favor. See, Friends ofAnimals, Inc. v. Associated Fur Manufacturers, Inc.

46 N.Y.2d 1065(1979).

13. When a primafacie showing is demonstrated, the burden then shifts to the non-

moving party to come forward with competent evidence to demonstrate the existence of

a material issue of fact, the existence of which necessarily precludes the granting of

Summary Judgment and necessitates a trial. When considering a Motion for Summary
Judgment the function ofthe Court is not to resolve issues but rather to determine if any

such material issues exist. Mere conclusions or unsubstantiated allegations are

insufficient to raise a triable issue. Unsubstantiated allegations or assertions are

insufficient for this purpose. Zuckerman v. City ofNew York, supra; Gilbert Frank Corp.

V. Federal Insurance Company^ 70 N.Y.2d 966(1988).

14. The impact of questions of comparative negligence on a Motion for Summary

Judgment was very recently resolved by the Court of Appeals. In Rodriguez v. City of

New York, 2018 WL 1595658 [April 3, 2018], the Court addressed the issue of

"[wjhether a plaintiffis entitled to partial summaryjudgment on the issue ofa defendant's

liability, when .. . defendant has arguably raised an issue of fact regarding plaintiffs

comparative negligence." The Court held that a "plaintiffdoes not bear the double burden

of establishing a primafa^i»f^^oi defendant's liabilitymTdmie absence of his or her ^

own comparative f^lt". Id at page 14, section III.
15. Thus, under Rodriguez a Plaintifftherefore[1]only needs to establish prima facie

case of defendant's liability and [2] does not need to prove the absence of his own

comparative negligence to be entitled to partial summary judgment on liability.

16. In finding the Plaintiffso entitled, the Court cited the straightforward language of

CPLR §1411, which provides: In any action to recover damages for personal injury,

injury to property, or wrongful death, the culpable conduct attributable to the claimant

or to the decedent, including contributory negligence or assumption of risk shall not bar

recovery, but the amount of damages otherwise recoverable shall be diminished in the

proportion which the culpable conduct attributable to the claimant or decedent bears to

the culpable conduct which caused damages.

 17. Accordingly, the Court explained the system of comparative negligence adopted

in this state, "direct[s] courts to consider a plaintiffs comparative fault only when

considering the amount of damage^a defendant owes to plaintiff." {Rodriguez, 2018

WL 1595658, at *3).

18. Moreover, the Rodriguez Court stated that "comparative negligence is not a

defense to the cause of action of negligence, because it is not a defense to any element

(duty, breach, causation) of plaintiffs prima facie cause of action for negligence, and as

CPLR §1411 plainly states, is not a bar to plaintiffs recovery but rather a diminishment

of the amount of damages." (Id. at *5). Thus, "[w]hen a defendant's liability is

established as a matter of law before trial, the jury must still determine whether the

plaintiff was negligent and whether such negligence was a substantial factor in causing

plaintiffs injuries." (Id. at *5-6; see also Edgerton v. City of New York, 2018 WL

1833267 [2nd Dept., 2018]. "[T]o be entitled to summary judgment on the issue of

liability, a plaintiff is no longer required to show freedom from comparative fault in

establishing his or her case."].(Id. at *5). [Emphasis added].

Thus, in matters where there is no determination under CPLR § 3212(g) by the

^ourt that the Plaintiff was free of fault in the events of the incident, the jury still gets to

weigh ifthe acts ofthe Plaintiff were negligent and if such acts substantially contribute^

to the injuries alleged.

19. ^The Plaintiff in this motion is asking for a d^rmination under CPLR § 3212(g)
ro establish the law of this case that the Plainti^ was not at fault in this matter. This
\U>. request is being made based on the facts presented and the law discussed herein which
supports both this conclusion and request for relief to dismiss relevant affirmative

defenses.

20. Law as to hit in the rear vehicle cases: A rear-end collision with a stopped or

stopping vehicle establishes a prima facie case of negligence on the part of the operator

of the rear vehicle, thereby requiring that operator to rebut the inference of negligence

by providing a non-negligent explanation for the collision (see Theo v. Vasquez, 136

AD3d 795, 796 [2016]; Le Grand v Silberstein,\22> AD3d 773, 774 [2014]; Cheow v.

Cheng Lin Jin, 121 AD3d 1058, 1058-1059 [2014]; Volpe v. Limoncelli, 74 AD3d 795,

795 [2010]). A non-negligent explanation may include a mechanical failure, a sudden,

unexplained stop ofthe vehicle ahead, an unavoidable skidding on wet pavement, or any

other reasonable cause (see, Binkowitz v. Kolb, 135 AD3d 884, 885 [2016]; Etingof v.

Metropolitan Laundry Mack. Sales, Inc., 134 AD3d 667[2015];D'Agostino v. YRC,Inc.,

120 AD3d 1291,1292 [2014]; Sayyedv. Murray, 109 AD3d 464 [2013]). "While a non-

negligent explanation for a rear-end collision may include evidence of a sudden stop of

the lead vehicle, vehicle stops which are foreseeable under the prevailing traffic

conditions, even if sudden and frequent, must be anticipated by the driver who follows,

since he or she is under a duty to maintain a safe distance between his or her car and the

car ahead'" Theo v. Vasquez, 136 AD3d at 796, quoting Brothers v Bartling, 130 AD3d

554,556[2015][internal quotation marks omitted]; see Volpe v. Limoncelli, 74 AD3d at

795-796.

21. When the driver of an automobile approaches another automobile from the rear,

he or she is bound to maintain a reasonably safe rate ofspeed and control over his or her

vehicle and to exercise reasonable care to avoid colliding with the other vehicle pursuant

10
to New York State Vehicle and Traffic Law (V.T.L.) § 1129 (a). It is well settled law

that a rear-end collision with a stopped or stopping vehicle establishes a primafacie case

of liability against the moving vehicle's driver and imposes a duty to come forward with

a non-negligent explanation for the collision to rebut the inference of negligence.

Sorocco V Meglio, 2018 NY Slip Op 00325 (2"" Dept., 2018).

22. Ifthe operator fails to rebut the inference ofnegligence, then Summary Judgment

should be granted to the lead vehicle as a matter of law. A claim that the driver of the

lead vehicle made a sudden stop is insufficient as a matter oflaw to rebut the presumption

of negligence of the trailing vehicle. McGregor v. Mama, 295 A.D.2d 487 (2"^ Dept.,
2002).

23. A following driver is under a duty to maintain a safe distance between his or her

car and the car ahead as vehicle stops are foreseeable even if sudden and frequent and

same must be anticipated by the following driver. Shamah v. Richmond County

Ambulance Service, Inc. 279 A.D.2d 564 (2"'' Dept., 2001).

24. Drivers have a duty to see what should be seen and to exercise reasonable care

under the circumstances to avoid an accident. Filippazzo v. Santiago, 277 A.D.2d (2"'^

Dept., 2000).

25. The Second Department held that the mere assertion that the lead vehicle came

to a sudden stop while traveling in heavy traffic is insufficient to raise a triable issue of

fact. Plummer v. Nourddine, 82 AD3d 1069, 1070(2nd Dept., 2011). The Plummer

Court held that the inference of negligence is also not rebutted by the mere assertion that

defendant's vehicle was unable to stop on a wet roadway (citing, Volpe v. Limoncelli, 74

AD3d 795 (2nd Dept., 2010). "Vehicle stops which are foreseeable under the prevailing

11
traffic conditions, even if sudden and frequent, must be anticipated by the driver who

follows, since he or she is under a duty to maintain a safe distance between his or her car

and the car ahead (see. Vehicle and Traffic Law § 1129 [a].).

26. Argument: The deposition testimony of Defendant established that he breached

his duties to maintain a reasonably safe distance between his vehicle and the car ahead

of him; to be aware of the traffic conditions which were readily observable and to keep

his eyes on the road.(New York State, Vehicle and Traffic Law § 1129(a)).

27. The testimony of Defendant driver shows that he has no non-negligent

explanation for the rear-end crash. There was no mechanical failure, no sudden or

unexplained stop of the vehicle ahead, no unavoidable skidding on wet pavement, no

sudden stop of vehicles in front of Plaintiffs vehicle nor any other reasonable cause has

been stated by Defendant,(cf. Tumminello,\A^ AD3d at 1085).

28. Even if the traffic on the bridge was stop and go, such does not vitiate the

responsibility of a following driver not to crash into the lead car. Shamah v. Richmond

County, supra. Further,the testimony ofthe Defendant states that he saw the brake lights

ofthe vehicles in front of Mr. Cooper's car(Deposition pages 43-44)and none-the-less

Defendant driver still hit the rear of Mr. Cooper's car with the front bumper of the 18-

wheeler tractor.

29. It is respectfully argued that Plaintiff has demonstrated primafacie entitlement to

Summary Judgment and therefore the Court should award Summary Judgment
lugmciu on
uii

Liability in favor of the Plaintiff under CPLR § 3212(g) and dismiss thej^Ffirmative
fenses numbered 10^'\ 12'\ 13^^ and 17''\

12
30. Defendant^5fll5MyiSfi$^6>any issues of fact that'might preclude Summary
Judgment. Defendant has failed to submit any evidence to establish a non-negligent

explanation for the 18-wheel-tractor-trailer striking Plaintiffs vehicle in the rear.

31. Defendant violated Federal Safety Regulations and same can be used as an

inference of negligence: The United States Department of Transportation issued

"Hours-Of-Service-Rules." These rules restrict the amount of driving that an operator

can do in one sitting. Property-Carrying Drivers (N.Y.S. - C.D.L. licenses), which

Defendant testified to be, have an 11-Hour Driving Limit after 10 consecutive hours off

duty. For example, if a driver has had 10 consecutive hours off, comes to work at

6:00AM and drives from 7:00AM until 2:00PM (7 hours) the driver must take a 30-

minute break. After the 30-minute break the driver can then drive for a maximum of4

hours until 6:30PM but must not drive again until having at least 10 consecutive hours

off duty.(Exhibit "K").

32. Defendant by his testimony was beyond those regulations. Math dictates that if

Defendant started driving at 5:00AM (Page 9) and took a half-hour break at 11:00AM

(Page 21), then at the time of his break, he had already driven for six (6) hours. This

means he would only be allowed to drive for another five (5) hours to make a total of

eleven(11)hours. Defendant states in his testimony that the accident occurred at around

5:00PM to 5:15PM. Further mathematical summary is in the next paragraph.

33. So, 5:00AM to 11:00AM is six (6)hours.

Then Yi hour lunch break.

Then 11:30AM to 5:00PM is 5 'A hours.

13
 TOTAL =\ \ Y2 hours on the road from the time that Defendant Driver left

the depot until the time ofthe crash. Had the crash not happened, he would have

been driving for approximately 12 Y2 hours.

34. The Maximum 11-Hour Daily Driving Period states that there can only be a total

of 11-Hours Daily Driving.

35. As such,Defendant Driver was in violation offederal rules concerning maximum

time of operation of a commercial vehicle. The violation of a rule of an administrative

agency or of an ordinance of a local government, lacking the force and effect of a

substantive legislative enactment,is "merely some evidence which the jury may consider

on the question of defendant's negligence". Teller v. Prospect Hts. HosptL, 280 NY 456,

460(1930).

36. Further, Defendants are in violation ofiitle 49,Subtitle B,Chapter III, Subchapter
' M

B, Part 395.15 pertaining to on-board recording devices. The Driver testified that there

were no such devices on the tractor. These devices are mandatory.

37. For purposes of establishing negligence New York Courts have long recognized

a distinction between State and Federal statutes on the one hand, and local ordinances or

administrative rules and regulations on the other, (see, Long v Forest-Fehlhaber, 55

NY2d 154, 160 (1962); see, also, Rizzuto v Wenger Contr. Co,, 91 NY2d 343, 349

(1988)). As a rule, violation of a State or Federal statute that imposes a specific duty

constitutes negligence per se, or may even create absolute liability (see. Van Gaasbeck v

Webatuck Cent School Dist No. 1, 21 NY2d 239,243(1967)). By contrast, violation of

a municipal ordinance constitutes only evidence of negligence (see, Martin v

14
Herzog, 228 NY 164, 169 (1920)). See, Elliot v. City ofNew York, 95 NY2d 730, 734

(2001).

38. While the violation of a statute may constitute negligence or contributory

negligence as a matter of law, the facts must be found proving a violation and the

violation must be shown to be the proximate cause of the injury, for a finding of

negligence to attach. Basso v. Miller, 40 NY2d 233,242(1976).

39. In the matter at bar, the Defendant driver was on the road for a period in excess

of the federally mandated maximum time. The text of the relevant Statute is annexed as

an Exhibit hereto. It is argued to the Court that although there may not be sufficient

testimony in the Defendant's deposition to make the finding as a matter of law

(negligence per-se) that the violation of hours was a proximate cause, nor did the

Defendant driver testify that he was tired due to the long hours, none-the-less, the

violation of federal statute may be used by this Court in its analysis of negligence. It is

proposed that the inference of negligence be drawn against the Defendants by reason of

the violation of federal statute.

40. Summary of Arguments: In sum, it is fundamentally clear that a rear-end

collision with a stopped or stopping vehicle creates a prima facie case of negligence

against the operator of the rear vehicle thereby requiring that operator to rebut the

inference of negligence by providing a non-negligent explanation for the collision

di/Jg aynln-jlegli^nti

41. "T The undisputed facts establish that Defendant was negligent because he had been

driving over the mandated hours before his truck struck the Plaintiffs vehiclejAs a result
of traveling too fast, negligent driving, failure to see what was there to be seen and

violation of the safety regulations,^^failed to stop in time when Plaintiffs vehicle

slowed with traffic in front of vehicle and then Defendant proceeded to strike the

Plaintiffs vehicle.

42. The Court of Appeals case of Andre v. Pomeroy, 35 N.Y.2d 361 (1974) is

universally cited for the proposition that negligence cases are subject to summary

judgment and that "when there is no genuine issue to be resolved at trial, the case should

be summarily decided"(Id., at 364).

43. Where a Plaintiff submits uncontradicted evidence that their vehicle was rear-

ended while proceeding or moving with stop and go traffic, such establishes primafacie

entitlement to judgment as a matter oflaw on the issue of liability, and if Defendant fails

to provide a non-negligent explanation then an award of Summary Judgment in favor of

Plaintiff is appropriate to be issued by the trial level court. Cases and analysis follows.

44. In Balducci v. Velasquez, 92 AD3d 626,628 (2"^^ Dept., 2012), this Court stated:

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of

negligence against the operator of the rear vehicle, thereby requiring that operator to

rebut the inference of negligence by providing a non-negligent explanation for the

collision. (Internal citations omitted).

45. For example, in Cortes v. Whelan,83 A.D.3d 763(2"^ Dept., 2011)the defendant

failed to rebut the showing of negligence by providing a non-negligent explanation for

the collision, failed to control his vehicle and failed to see that which and under the

circumstances he should have seen by the proper use of his senses, summary judgment

on liability against Defendant was warranted. Such also are the facts in this matter.

16
46. As a general rule, a rear-end collision with a travelling or stopping vehicle creates

a prima facie case of negligence with respect to the operator of the rear-most vehicle,

imposing a duty of explanation on that operator to excuse the collision either through a

mechanical failure, a sudden stop ofthe vehicle ahead, an unavoidable skidding on a wet

pavement, or any other reasonable cause.

47. Here, the Plaintiff has demonstrated his primafacie entitlement to judgment as a

matter of law on the issue of liability by demonstrating that his vehicle was travelling

without incident or sudden movement when it was struck in the rear by the Defendant's

vehicle.

48. Here, the Defendant has not testified, nor has the non-party witnes&4dyjjii^'any

triable issue of fact as to the existence of a non-negligent explanation. Compare, Miller

V. Steinberg, 2018 NY Slip Op 05585 (2"'' Dept., 2018), where a jury found for the

Defendant based on an unavoidable skid in snowy conditions. Here,there is no valid line

of reasoning^^^ermissible inferences which could possibly lead rational persons to

the conclusion that the Plaintiff contributed to the events at issue.

49. All ofthe relevant case law shows that a vehicle proceeding or moving with traffic

must anticipate traffic conditions since such following driver is under the duty to

maintain a safe distance between his/her car and the car ahead. There are no statements

in any of the transcripts or non-party witness affidavit proving that Plaintiff took any

actions that contributed to the happening of this accident. Plaintiff was moving with

traffic and the Defendant without a non-negligent explanation hit into the rear of

Plaintiffs vehicle.

17
50. It is axiomatic law in the Second Department that a lead vehicle which had

completely stopped, or was coming to a stop or just minding its own business in its lane

traveling steadily with traffic, when such lead vehicle was suddenly struck from behind

by another motor vehicle, such lead vehicle (Plaintiff) has satisfied his/her prima facia

burden of proof of establishing entitlement to judgment as a matter of law on the issue

of liability. CPLR § 3212(a) and (g)summary judgment should be granted.

51. Strike the Affirmative Defenses: The relief requested herein includes the

striking of certain Affirmative Defenses. Same are addressed in order below.

a. striking the Affirmative Defenses as to assumption of risk (1^' Affirmative

Defense). This should be struck because the Plaintiff did not assume the risk

of being smashed in the rear by an 18-Wheeler Tractor Trailer and there is no

testimony indicating this to be a valid defense.

b.^^atute of|imtations(2"^ Affirmative Defense). This should be struck because

the incident took place on May 17,2017,the^ex^mber was purchased on
September 7, 2018 and issue was joined in October of 2017.

c. Waiver of right to commence suit (3^'' Affirmative Defense). This should be

struck because there is no such testimony or indication anywhere stating that

Plaintiff waived his right to commence a suit

In thin APrii iiiiili i P fi ii i *

d. False statements by the Plaintiff bars the case (4*'^ Affirmative Defense),

Plaintiff has stated everything to the court in the Pleadings and Defendants

have not shown anything to the contrary.

18
 .r.L.
e. Claims barred by absence oflegal/esponsibility on the part ofthe Defendants
(6'^^ Affirmative Defense). ThisAhould be struck because Defendant has the
legal responsibility to abide and Federal Regulations and the

duty ofto exercise reasonable care while driving.

f. Incident caused by acts or omissions of a third party for whose conduct

Defendants are not legally responsible Affirmative Defense). This should

be struck because there is no testimony of the Defendant, Plaintiff or non-

party witness to state that a Third-Party was involved.

g. Failure to state a cause of action (10"^ Affirmative Defense). This should be

struck because a fair reading of Plaintiffs complaint shows that there are
JProP^ly
causes of actionjfil^here was a duty was owed,li was breached and there
were damages caused by that breah.

h. Failure to join a necessary party Affirmative Defense). This should be

struck because there are no other necessary parties to be joined and therefore

not an Affirmative Defense applicable to the case at bar.

i. Justification of acts of Defendant (12'^ Affirmative Defense). This should be

struck because there is no testimony from the Defendant stating that the

actions of the Defendant were justified. Therefo^such is not applicable to

the case at bar.

j. Plaintiff actually or implied his consent to the Defendants' 18-wheel-tractor-

trailer crashing into the rear of his vehicle (13^'' Affirmative Defense). This

should be struck because the Plaintiff in no way, according to all evidence.

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 put himself In a position to consent to being rear-ended by Defendant's 18-

heel-tractor-trailer.

j Culpable conduct, comparative negligence and assumption of risk (16'*^

Affirmative Defense). This should be struck because defense has not shown

It the Plaintiff conducted himself in any

negligent manner, there is no proof that Plaintiff contributed to the

underlying occurrence and that Plaintiff did not assume the risk of his private

automobile being stuck in the rear by an 18-wheel-tractor-trailer.

Y/'Contractual indemnification(17"^ Affirmative Defense).This should be struck

because there»« in this case

and it is not-applicable to the case at bar.

^ Sudden emergency (23'^'^ Affirmative Defense). This should be struck

because Defendant's deposition Testimony states that there were no

emergency circumstances, his truck was in good working order

driving and that nothing occurred that warranted an

emergency. Further the 3''^ Party Witness Affidavit states that traffic was

moving fine, the roads were clear, there were no underlying operator

issue^
issues

52. Conclusion: It is respectfully argued that the Defendant is unable to raise a

triable issue of fact as to whether Plaintiff was also negligent, and if so, whether that

negligence contritrntettToThe^happening of the accident. And even if so done, the

Rodriguez cas/does not bar the granting ofsummary judgment on liability^ _^7r
53. It is respectfully concluded that Defendant in his deposition testimony has failed

to provide an explanation with respect to why his vehicle hit the Plaintiffs vehicle, that

any statement by an attorney without actual knowledge ofthe facts is nothing more than
"spin", and as such is not evidentiary in nature.

54. There is no testimony that raises any negative conduct on the part ofthe Plaintiff

nor are there any disputes of material fact. The facts before this Court should respectfully

result in an award of Summary Judgment in favor of Plaintiff.

55. It is requested that the Court issue an order under CPLR § 3212(g) which serves

to limit issues of fact for trial. This subsection states:

If a motion for summary judgment is denied or is granted in part, the

court, by examining the papers before it and, in the discretion of the
court, by interrogating counsel, shall, if practicable, ascertain what
facts are not in dispute or are incontrovertible. It shall thereupon make
an order specifying such facts and they shall be deemed established
for all purposes in the action. The court may make any order as may
aid in the disposition of the action.
56. Based on the above, it is requested that the Court issue an order finding that the

Plaintiff wa^free of comparative negligence and that same shall be deemed to be

established for all purposes in the action.

57. Accordingly, it is respectfully requested that the Court grant Plaintiffs Motion

for Summary Judgment pursuant to CPLR § 3212(a) and § 3212(g) seeking liability

against Defendants upon the undisputed facts and that the Court dismiss the Affirmative

Defenses delineated in the moving papers.

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Dated: Warwick, NY Certified pursuant to Court Rule 130-1.1a
September 6,2018

Allan J. Aheame Jr.

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