Castro-Verdugo v City of New York

[*1] Castro-Verdugo v City of New York 2015 NY Slip Op 51013(U) Decided on July 8, 2015 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2015
Supreme Court, Queens County

Maria Castro-Verdugo, Plaintiff,

against

The City of New York, NEW YORK CITY FIRE DEPARTMENT, JONATHAN VELASQUEZ and LUIS M. CASTRO, Defendants.



16533/11



Anthony M. Genoa, Esq.Avanzino & Moreno, PC(Attorney for Plaintiff)26 Court Street, Suite 2015Brooklyn, NY 11242

Michael A. Cardozo, Esq.Ass. Corporation Counsel(Attorney for Defendant)100 Church Street, New York, NY 10007
Phyllis Orlikoff Flug, J.

The following papers numbered 1 to 6 read on this motion

Notice of Motion1 - 2

Affirmation in Opposition (2)3 - 4

Reply Affirmation (2)5 - 6

Defendants, the City of New York, New York City Fire Department and Jonathan Velasquez, move inter alia for summary judgment, dismissing plaintiff's complaint as asserted against them.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on August 15, 2010 as a result of a motor vehicle accident between the car in which she was a passenger and an ambulance being operated by defendant, Jonathan Velasquez, on 51st Street, at or near its intersection with Northern Boulevard, in the County of Queens, City and State of New York.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Under New York's Vehicle and Traffic Law (hereinafter "VTL"), a fire vehicle is an authorized emergency vehicle acting in an emergency situation when responding to or working or assisting at the scene of an accident, police call, or fire alarm (VTL §§ 101, 114-b).

In support of the motion defendants submit inter alia the deposition testimony of Jonathan Velasquez and Steven Martinez, [*2]employees with the New York City Fire Department and the operator and passenger of the ambulance that the accident occurred when they were responding to a radio dispatch call (See Hemingway v. City of New York, 81 AD3d 595, 596 [2d Dept. 2011]).

Defendants, however were unable to testify as to any specific details including when the radio dispatch call was received and what the specific situation being reported in the radio dispatch call involved.

It is well settled that "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v. City of New York, 49 NY2d 556, 562 [1980]). In addition, "[a] shadowy semblance of an issue or bald conclusory allegations, even if believable are insufficient" (Polanco v. City of New York, 244 AD2d 322 [2d Dept. 1997]; see also Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]; S.J. Capelin Assocs., Inc. v. Globe Mfg. Corp., 34 NY2d 338, 340 [1974]; Blankman v. Incorporated Village of Sands Point, 249 AD2d 349, 350 [2d Dept. 1998]; Colonial Commercial Corp. v. Bresker Assocs., 238 AD2d 539 [2d Dept. 1997]; Aaron Pitter & Co., Inc. v. Segal, 173 AD2d 159 [1st Dept. 1991]).

This is particularly true here as the Court takes judicial notice of the fact that defendants maintain records memorializing such emergency calls and responses.

In addition, the records submitted by defendants conflict with their deposition testimony, demonstrating the existence of triable issues of fact regarding whether the vehicle was actually being operated in an emergency situation at the time of the accident (See Torres v. Saint Vincent's Med. Ctrs. of NY, 117 AD3d 717, 718 [2d Dept. 2014]; see also Jordan v. County of Suffolk, 70 AD3d 779, 780 [2d Dept. 2010]).

While the accident report for the motor vehicle accident that is the subject of this lawsuit indicates that the accident occurred at 5:05 pm, the uncertified call logs indicates that the radio dispatch call defendants claim to have been responding to was not sent/or received until approximately 5:06 pm, one minute after the subject accident (See Torres, supra, at 718).

Accordingly, the motion is denied, in its entirety. The parties remaining contentions are moot.

July 8, 2015 ____________________

J.S.C.