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Ortiz v. Ramirez

Ortiz v Ramirez 2025 NY Slip Op 32313(U) June 26, 2025 Supreme Court, Kings County Docket Number: Index No. 516682/2024 Judge: Anne J. Swern 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.

FILED: KINGS COUNTY CLERK 06/30/2025 12:39 PM INDEX NO. 516682/2024 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/30/2025

At an IAS Trial Term, Part 75 of the Supreme Court of the State of New York, Kings County, at the Courthouse located at 360 Adams Street, .BrooklyntNew York on the 26th day of J\lne'.2025 PRE S ENT: HON. ANNE J. SWERN, lS.C.

LEONARDO ORTIZ, JR, DECISION & ORDER Index No.: 516682/2024 Plaintiff, Calendar No.: 33 -against- Motion Seq.: 001 ISAJAH A, RAMIRE~, .CARDASH HOLDINGS CORP., CARDA SH HOLDINOS I CORP and CARDASH, INC.,

Defendants.

Recitation ofihefollowing papers as required by CPLR 2219(a): Pap~r.s Numbered Notice of Motion, Affinnation, Affidavits and Exhibits (NYSCEF 1-14).... ,.,,. 1, 2 Affinnaiion and Exhibits in Opposition (NYSCEF 16-18) ....................... ~, .. :.. "...3 Reply Affirmation and Exhibits (NYSCEF 19) ................................................... .4

Upon iheforegoing papers, the decision and order of rhe Court is asfollows:

This is an action for personal injuries.arising olitof a motor vehicle accident on

2/24/2024. It is alleged that defendant viob1ted Vehicle a.,nd Traffic Law § 1411.

Plaintiff has moved for summary jlldginenton the issue of liability and dismissing

defendants'third affinnative defem~es of comparative negligence/culpable conduct oh behalf of

plaintiff. Neither party h~ testified at a deposition. In support of the motiori, plaintiff has

submitted an a.ffidavit.

Plaintiff statesin the affidavit that he was traveiirtg with a green light on Cypress Hills

Street in Queens, New York. As he approached.its intersection with Cypress Avenue. defendant

suddenly turned left in front of him causing th~ accident. In opposition, defendant has not

516682/2024 Pagel of4

FILED: KINGS COUNTY CLERK 06/30/2025 12:39 PM INDEX NO. 516682/2024 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/30/2025

for operation; and not to the manner thereof.'' This is a defense to be proven by defendant and

where there is no evidence of serious criminal activity, a defendant is properly precluded from

offering evidence that plaintiff lacke~ a license to operate a vehicle (id.).

The police report upon which defendants rely does not establi~h thatplairitiff was

engaging in "serious criminal acts'' at the time of the accident. Defendant has failed to come

forward with proof"serious crfrninal acts.'' in admissible form.to defeat surrnnary judgment

(Giuffri4avCitlbank, 100 NY2<i 81).

The .Court has considered the. parties' remaining arguments.and finds sanie to .be Without

merit.

This constitutes the.decision and order of the Court.

ENTER:

.For Clerks use otily: MG _ __

·· MD - - - .Motion seq.#._ _ __

$16682.12024 Page4 t>/.f

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Footnotes

[1] of 4 [* 1] submitted an.affidavit concerning th~ happening of this accid~nt. Instead, defendant.argues that · ·slnc~ plaintiff W!1$ issu.e da sumrno:r,is.for violating Vehicle and Traffic. Law § 511, there are "issues·of':fact" [without piore] (Operation while liceilSe or privilege·is suspended or revoked;· aggravated unlicensed operatioa). Summary Judgment When deciding a summruyjudgmefit motion;_the Court's role is solely to identify the ex:is.tence 9f triable iss~ an.4 -not to detenniti.~ the ~erits of any·such issues ( Vega v Restcitii Construction Corp., 1a;NY3 d 4·991 ~()5 [2012]) or the credlbility ofthe movant '. s version of· events (~ee Xiang Fu He v Troort Management; Inc., '34: NY3.d ·1.67, 175 [201~] [internal citations. omitted])~ The Court views the evidence 1n_the.li~t most favorable_to the nonmoving parn,1 aJfo~g ~m the benefit of all ·reasonable inferences that can be·-drawn from the eviden~-(~e~. Negri v Shop ~ Stop1 Inc., 65 NY2d 625~ 626 [i 985]). the motion should be ·d~nied where the facts are in.cUsput~, wliere dffferen~ inferences may be;drawn.from the evidence; or·where the credibility ·Qfthe witoesses.i$ in_question (see Cameron v City ofLont.-Beach, 291 AD2d 113., 774·[2d.Dept. 2002)). Onc;e plaintiff establ~es aprimafacie entitletnent_to summarrjudginrot, the burden .shifts to th~ norunoving·p,arty to produ~e evi4entiazy prqof in admis~ibl~ form '1 sufficientto .~stahlish .the exi~tenc;e of ntaterial issues of fact that require a trial for .resolution" (Giuffiida,v. CUibank, l00.NY2cl 72, 81 [2003]'a.n.dAlvarez v. ProspectHospital, 68 NY2d:J24). Vehicle and Traffic§ it41 Aviob1tiQn.of the Vehicle and,. Tr~ffic Law constitut~s.negiigence per--se (Siezeme v Le~

[208] AD3d_809~810 (2"~ Dept 2022]). :Purs~Uo Ve_hicle . artd Traffic Law -§:11'°41, ·''[t]he operator . of.a vehicle in~nding. tQ tum to the.left. within an intersection inust yield the right--of- wa:y to any oncomjng·yehicle th~t is .within the fotersectiop or so close to it as to ·.constitute an -SJ6682/2(JZ',4. Pag_e-_29f-l 2 of 4 [* 2] immediate hazard' 1 (Ming-Fai Jon v Wager, 165 AD.3d 1253, i253'-1254 [2d Dept 2018], citing Attl v. Spetter, 137 AD3d 1176, 1176 [2d Dept 2016]). "The operator of an oncoming ·vehicle with the right-of-way is entitled to assume that the opposjng operator will yield.in conipliance .· with 1he Vehicle and Traffi¢ Law" (Attl \~ Spetler, 13.7AD3d 1176). Contrary to defendants• arguments, a pre-deposition motion for swnmary ju(igment may b.e granted upon submission of affidavits if plaintiff meets theirprima faci~ burd~n that summary judgment is warranted. Oncethis burden is met, defendaiitmustcome forward with anaffidavit or other adnii.s sible evidence to establish.the existence of a triable issue of fact to defeat summary judgm~nt. (Quinones v Grpcelndus., LLC, 219 AD3d 765, 766 [2d Dept 2023]; see also }earwood v New York City Transit Al{(hority, 227 AD3d 843, 845 [2d Dept2024]). Here, plaintiffme.t his primafacie, bu,rden thatdefendant was negligent as a rnatter of law by violating Vehicle and TrafficLaw .§ i 141 (Ming-Pai Jon v Wager, 16S AD3d 1253-1254; Attl v. Spet/er, 137 AD3 d 1176). In opposition, defendant failed "produce evidentiary proof in admissible form sufficient to establish the existence. of material issues of fact that require a trial f.ortesolutiori" (Giuffrida .v Citibank, 100 NY2d 72, · 81 [2003]). Vehicle and Traffic Law § 511 Defendant's reliance on Vehicle and Traffic Law § 511 to defeat !:lummary judgment is without merit. A plaintiff is precluded fro in.recovering an award if he or she was "injured in the course ofknowingly a.pd intentionally corilttlitting serious criminal acts," i.e.,. joyriciing,.resisting arrest, crossipg train tracks while the safety gate was down, elevator surfing; or drivingJntoxicated at 100 mph (Firmes v Chase Manhattan Automotive Fin. Corp., 50 AD3d 18, 26:..27 [2d Dept 2008] [internaLcitiitions omitted]). ''The absence [] of a driver's license relates only to the authority 5166.8211024 Puge3 of-I 3 of 4 [* 3]