Jeffrey v Kin Wah So

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Jeffrey v Kin Wah So 2023 NY Slip Op 31671(U) May 12, 2023 Supreme Court, Kings County Docket Number: Index No. 527835/2022 Judge: Carl J. Landicino Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 527835/2022 FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 25 •.f' f' RECEIVED NYSCEF: 05/16/2023 , I ~Y: At an IAS lAS Term, Term, Part Part 81 of of the the Supreme Supreme Court New York, Court of of the State State of of New York, held held in and the County County of of Kings, Kings, at the the Courthouse, Courthouse, at for the Adams Street, Street, Brooklyn, Brooklyn, New York, on New York, 360 Adams th the 12th of May, May, 2023. 2023. the day of PRESENT: PRESENT: HON. CARL CARL J. LANDICINO, LANDICINO, HON. Justice. Justice. ----------------------------------------------~--------------------------)( ----------------------------------------------: --------------------------X HAKIM JEFFREY, JEFFREY, HAKIM Index No.: 527835/2022 Index No.: 527835/2022 Plaintiff, Plaintiff, DECISION AND AND ORDER ORDER DECISION -against-againstWAH SO, UBER UBER TECHNOLOGIES, TECHNOLOGIES, INC. INC. and UBER UBER KIN WAH USA, LLC, LLC, USA, Motion Sequence Sequence # 1 Motion Defendants. Defendants. ------------------------------------------- -------· ------------------ -X ---------------------------------------~-------------~-----------------~-)( Recitation, as required required by CPLR CPLR 2219(a), 2219(a), of of the the papers papers considered considered in the the review review of of this this motion: motion: Recitation, Papers Numbered (NYSCEF) Papers Numbered {NYSCEF) Notice of Motion/Cross Motion/Cross Motion Motion and and . . Notice of Affidavits (Affirmations) (Affirmations) Annexed·········································:··············· Annexed Affidavits Opposing Affidavits Affidavits (Affirmations) (Affirmations).. ............................................ :············ Opposing Reply Affidavits Affidavits (Affirmations) (Affirmations) ....•.. :;........... Reply ...................................................... 8-13, 8-13, 18, 22, 20. After a review review of of the the papers papers and oral oral argument, argument, the the Court Court finds as follows: follows: After Plaintiff, Hakim Hakim Jeffrey Jeffrey (the "Plaintiff') "Plaintiff') moves moves (motion (motion sequence sequence #1) for summary summary Plaintiff, judgment the issue issue of ofliability dismissal of of the affirmative affirmative defenses defenses relating relating to the issue issue of of liability and dismissal judgment on the liability as against against Defendant, Defendant, Kin Kin Wag Wag So (the "Defendant "Defendant So"). So"). The The action action concerns concerns a motor motor liability vehicle collision collision at the the intersection intersection of of37 Avenue and 30thth Street Street in Queens, Queens, New York on October October vehicle 37thth Avenue New York 31, 2021. Plaintiff Plaintiff contends contends that that the vehicle vehicle owned owned and operated operated by Defendant Defendant So proceeded proceeded into the intersection intersection when Plaintiffs vehicle, vehicle, having having failed to yield when faced faced with with a stop sign sign and struck struck Plaintiff's of way. Plaintiffs right right of way. Plaintiff Plaintiff argues argues that that this constituted constituted negligence negligence on the part part of of Defendant Defendant the Plaintiff's was a violation violation of of New New York York Vehicle Vehicle and Traffic Traffic Law Law (VTL) (YTL) 1142(a). l 142(a). Defendant Defendant So So and also was [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 25 INDEX NO. 527835/2022 RECEIVED NYSCEF: 05/16/2023 opposes motion and means of opposes the motion and contends, contends, by means of his attorney's attorney's affirmation, affirmation, that that the motion motion is premature and and issues issues of of fact fact remain. remain. Defendants, Defendants, Uber premature Uber Technologies, Technologies, Inc. and and Uber Uber USA, USA, LLC LLC ((collectively collectively "Defendant Uber") also oppose "Defendant Uber") oppose the motion motion as to any determination determination relating relating to its liability). liability 1• Summary judgment is a drastic drastic remedy remedy that Summary judgment that deprives deprives a litigant litigant of of his or her her day in court, court, and it «should when there there is no doubt "should only only be employed employed when doubt as to the absence absence of of triable triable issues issues of of material fact." Kolivas v. v. Kirchoff, Kirchoff, 14AD3d material fact." Kolivas 14AD3d 493, citing Andre 493, 787 N.Y.S.2d N.Y.S.2d 392 [2d Dept Dept 2005], 2005], citing Andre v. Pomeroy, Pomeroy, 35 NY2d N.Y.S.2d 1341 [1974]. The v. NY2d 361,364,362 361, 364, 362 N.Y.S.2d The proponent proponent for summary summary judgment judgment must make make a prima prima facie facie showing must showing of of entitlement entitlement to judgment of law, tendering tendering judgment as a matter matter of sufficient demonstrate the absence sufficient evidence evidence to demonstrate absence of of any material offact. material issues issues of fact. See Sheppard-Mobley Sheppard-Mobley v. King, 10 AD3d N.Y.S.2d 98 [2d Dept v. King, AD3d 70, 74, 778 N.Y.S.2d Dept 2004], 2004], citing citing Alvarez Alvarez v. v. Prospect Prospect Hospital, Hospital, 68 NY2d NY2d 320,324,508 N.Y.S.2d 923 [1986], 320,324,508 N.Y.S.2d [1986], Winegradv. Winegradv. New York Univ. Med. Ctr., etr., 64 NY2d New York NY2d 851,853,487 N.Y.S.2d 316 determining a motion 851,853,487 N.Y.S.2d 316 [1985]. [1985]. "In "In determining summary judgment, evidence motion for summary judgment, evidence must favorable to the nonmoving must be viewed viewed in the the light light most most favorable nonmoving party, party, and and all reasonable reasonable inference inference must be resolved resolved in favor nonmoving party." must favor of of the nonmoving party." Adams Adams v. Bruno, Bruno, 124 AD3d AD3d 566, 566, 566, 1 N.Y.S.3d 280,281 280, 281 [2d Dept Dept 2015] 2015] citing citing Valentin N.Y.S.3d Valentin v. 854, 989 N.Y.S.2d v. Parisio, Parisio, 119 AD3d AD3d 854, N.Y.S.2d 621 [2d Dept Escobar v. Velez, Dept 2014]; 2014]; Escobar Velez, 116 AD3d AD3d 735, 735,983 Dept 2014]. 2014]. 983 N.Y.S.2d N.Y.S.2d 612 [2d Dept Once moving party party has made made a prima prima facie Once a moving showing of of its entitlement entitlement to summary summary facie showing judgment, "the burden shifts the opposing opposing party party to produce judgment, "the burden shifts to the produce evidentiary evidentiary proof proof in admissible admissible form sufficient sufficient to establish establish the existence existence of of material material issues issues of of fact which which require require a trial trial of of the action" action" Garnham Han Real Real Estate Estate Brokersv. Brokersv. Oppenheimer, Garnham & Han Oppenheimer, 148 AD2d 8377 [2d Dept AD2d 493,538 493, 538 N.Y.S.2d N. Y.S.2d 83 Dept 1989]. Failure Failure to make make such requires denial such a showing showing requires sufficiency denial of of the the motion, motion, regardless regardless of of the the sufficiency 1 As an initial matter, the motion only relates Defendant So's I initial matter, the motion only relates to Defendant So's liability. liability. Therefore, Therefore, whether whether Defendant Defendant Uber Uber has liability will not not be determined liability will determined herein. herein. 2 [* 2] 2 of 4 I I INDEX NO. 527835/2022 FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/16/2023 AD3d 518, 520, 824 Corp., 34 AD3d Haus. Mgmt. Corp., of v. Cmty. Hous. Demshick v. See Demshick papers. See opposing papers. of the opposing N.Y.S.2d 558-559, 610 N.Y.S.2d AD2d 558, Plotnick, 202 AD2d v. Plotnick, N.Y.S.2d 558,558-559,610 Menzel v. 2006]; see Menzel Dept 2006]; N.Y.S.2d 166, 168 [2d Dept freedom from show freedom required to show 50 [2d Dept 1994]. However, "[ a] plaintiff longer required plaintiff is no longer However, "[a] Dept 1994]. ... that the they can show ... " if facie case ..." prima facie comparative fault fault in establishing establishing his or her if they show " ...that her prima comparative Mall Auto Mall v. Auto injuries." Tsyganash alleged injuries." of the alleged defendant's Tsyganash v. cause of proximate cause was a proximate negligence was defendant's negligence City v. City Rodriguez v. 2018]; Rodriguez Dept 2018]; 74, 75 [2d Dept N.Y.S.3d 74,75 Fleet 1033, 1034, 1034,83 83 N.Y.S.3d AD3d 1033, Inc., 163 AD3d Fleet Mgmt., Inc., 366,371 N.E.3d 366, 101 N.E.3d 312,320, of 320,101 371 [2018]. NY3d 312, New York, 31 NY3d ofNew none certified, none report is certified, police report While the police report. While Plaintiff police report. and a police affidavit and his affidavit provides his Plaintiff provides probative little probative has little report has the report Therefore, the person. Therefore, of the statements statements therein attributed to any person. therein are attributed of operating a was operating accident, I was the accident, of the location of and location time and value. "[a]t the time states, "[a]t affidavit states, his affidavit Plaintiff, in his value. Plaintiff, Avenue and 30thth intersection of Barnett. At the intersection 2016 owned by Kamille of 37thth Avenue Kamille Barnett. vehicle owned motor vehicle Mazda motor 2016 Mazda observed intersection, I observed the intersection, approach the Street, defendant, cab approach stop sign. As the cab had a stop WAH SO, had KIN WAH defendant, KIN Street, vehicle." "Prior intersection, striking the cab failed failed to stop stop at the stop stop sign and entered entered the intersection, striking my vehicle." "Prior to had the Stop the accident, stop at the Stop sign. I had going to fail to stop was going defendant was that the defendant indication that had no indication accident, I had sound the opportunity to sound have an opportunity nor did I have tires, nor no warning, screeching tires, horns, screeching hear any horns, not hear warning, did not horn avoid the accident." accident." horn or avoid that establishing that burden establishing facie burden prima facie his prima This meet his Plaintiff to meet sufficient for Plaintiff evidence is sufficient This evidence way after right of the right Defendant failed to stop stop or "failed "failed to yield yield the of way after stopping stopping at a stop sign either failed Defendant So either AD3d Spagnoli, 44 AD3d v. Spagnoli, Hull v. l 142(a)." Hull Law§~ 1142(a)." Traffic Law controlling Vehicle and Traffic of Vehicle violation of traffic in violation controlling traffic Leasing, Auto Leasing, v. Citiwide Friedberg v. 2007]; see also Friedberg 1007,1007,844 417 [2d Dept Citiwide Auto Dept 2007]; 416,417 N.Y.S.2d 416, 1007, 844 N.Y.S.2d 1007, New York v. New Hunt v. 2005]; Hunt Inc., 22 AD3d York City City Transit Transit Dept 2005]; 770, 771 [2d Dept N.Y.S.2d 770, 523, 801 N.Y.S.2d 522, 523, AD3d 522, v. Am. United Fernandez v. 2018] and Auth., 737, 87 N.Y.S.3d Dept 2018] and Fernandez United N.Y.S.3d 563 [2d Dept AD3d 735, 737, Auth., 166 AD3d 2019]. Dept 2019]. N.Y.S:3d 145 [2d Transportation, Inc., 177 A.D.3d [2dDept 707, 113 N.Y.S:3d 704, 707,113 A.D.3d 704, Transportation, 3 [* 3] 3 of 4 FILED: KINGS COUNTY CLERK 05/16/2023 03:39 PM NYSCEF DOC. NO. 25 INDEX NO. 527835/2022 RECEIVED NYSCEF: 05/16/2023 However, affirmation. However, attorney's affirmation. his attorney's In opposition provides his Defendant So provides motion, Defendant the motion, opposition to the that the Defendant So contends Additionally, Defendant the affirmation affirmation fails of fact. Additionally, contends that issue of material issue raise a material fails to raise Motions for premature. Motions not premature. motion is not motion The motion discovery. The outstanding discovery. based on outstanding premature based motion is premature judgment is party opposing when a party summary judgement denied as premature opposing summary summary judgment premature when been denied have been judgement have summary opposing of the opposing position ofthe that facts supporting entitled further discovery "when it appears appears that supporting the position and "when discovery and entitled to further Network, 74 Television Network, Recorder Television v. Recorder party exist but cannotbebe stated." stated." Family-Friendly Family-Friendly Media, Inc. v. but cannot party exist nd Dept, LaMattina LLCv. LaMattina LoanServs., LLCv. Aurora LoanServs., 201 O]; see Aurora A.D.3d 739, 903 N.Y.S.2d 80,81 Dept, 2010]; 81 [2 nd N. Y.S.2d 80, 738,739,903 A.D.3d 738, nd Dept, New York Hosp. v. New Juseinoski v. 2009]; Juseinoski Dept, 2009]; & Assoc., N.Y.S.2d 724 [2nd 578, 872 N.Y.S.2d A.D.3d 578, Assoc., Inc., 59 A.D.3d nd Dept, Accordingly, the 2006]. Accordingly, Dept, 2006]. N.Y.S.2d 183 [2 nd Med. o/Queens, 636,637,815 N.Y.S.2d A.D.3d 636,637,815 Queens, 29 A.D.3d A1ed. Ctr. of affirmative third affirmative So's third Defendant So's and Defendant only and Plaintiff Defendant So only against Defendant granted against motion is granted Plaintiffss motion Harrison, v. Harrison, Sapienza v. See Sapienza negligence is dismissed. defense in relation comparative negligence dismissed. See Plaintiffss comparative relation to Plaintiff defense AD3d 1006, v. West, 195 AD3d Ng v. King Ng Kwok King 2021]; Kwok Dept 2021]; 191 AD3d 588 [2d Dept 584,588 N.Y.S.3d 584, AD3d 1028, 142 N.Y.S.3d Dept 2021]. 811,812 [2d Dept 2021]. N.Y.S.3d 811,812 146 N.Y.S.3d follows: ORDERED as follows: Based hereby ORDERED foregoing, it is hereby Based on the foregoing, Defendant So against Defendant liability as against of liability The Plaintiff summary judgment issue of judgment on the issue motion for summary Plaintiffss motion dismissed. defense is dismissed. affirmative defense third affirmative So's third (motion Defendant So's and Defendant granted and sequence #1) is granted (motion sequence Court. of the Court. Order of and Order The foregoing Decision and constitutes the Decision foregoing constitutes ENTER: ENTER: 4 [* 4] 4 of 4 ,,

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