Balkarran v. Sitts

2026 NY Slip Op 30002(U)

• Court: New York Supreme Court, Schenectady County
• Decided: January 8, 2026
• Docket: Index No. 2025-1567
• Status: Unpublished
• Author: Michael R. Cuevas

Opinion

Balkarran v Sitts 2026 NY Slip Op 30002(U) January 8, 2026 Supreme Court, Schnectady County Docket Number: Index No. 2025-1567 Judge: Michael R. Cuevas 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. PRESENT: HON. MICHAEL R. CUEVAS JUSTICE OF THE SUPREME COURT

STA TE OF NEW YORK SUPREME COURT COUNTY OF SCHENECTADY

SEURAJ BALKARRAN, DECISION AND ORDER

(Motion l) Plaintiff, Index No.: 2025-1567

-against-

DAYID D. SITTS and KENNETH R. SITTS,

Defendants.

APPEARANCES: Christopher Burke, Esq., Dalmata, Maloy & Burke, LLP, attorneys for Plaintiffs

Keith M. Frary, Esq., Law Offices of Thomas Martyn, attorneys for Defendants

MICHAEL R. CUEVAS, J.

Plaintiff Seuraj Balkarran ("Balkarran") instituted this action by filing a Summons and

Complaint on June 30, 2025. The Complaint alleges that Defendants were negligent and caused a

motor vehicle accident in which the Plaintiff claims he sustained serious personal mJunes.

Defendants David D. Sitts and Kenneth R. Sitts's ("Sitts") (collectively " Defendants") filed an

Answer on July 21, 2025. 1 Plaintiff now moves for summary judgment against Defendants on the

issue of liability. Balkarran also moves to strike certain of Defendants' Affirmative Defenses

(First- culpable conduct; Eighth- facts, circumstances or conditions beyond the control of

defendant that caused the accident to be unavoidable; Fifth- negligence of an unknown third-

party); and such other relief as the Court deems proper. Defendants oppose the motion and

Balkarran submits reply papers.

In support of his motion, Balkarran provided an Affirmation of Christopher Burke, Esq., a

certified copy of the police accident report, secondary police accident report, Summons and

1 Exs. C, D.

[* 1] Complaint, Defendants' Answer, and Affidavit of Seuraj Balkarran that was unsigned. In opposing

the motion, Defendants submit an Affirmation of Keith Frary, Esq., which incorporated exhibits

such as the Demand for a Verified Bill of Particulars, Omnibus Demands and Discovery Demands,

Notices of Depositions, and Notice of Medical Examination, all dated August 19, 2025.

This Court finds that summary judgment must be denied as Plaintiffs papers are do not contain

evidence in admissible form to support the motion and some of the papers submitted suggest a

potentially triable issue of material fact.

PLAINTIFF'S STATEMENT OF PURPORTED FACTS

On April 30, 2023 , while driving a 1997 Honda (KBB 2539) owned by David Sitts, without

a valid driver's license, Sitts allegedly crossed a double yellow dividing line on North Greenfield

Road, resulting in Balkarran maneuvering his vehicle to avoid being struck head on by Sitts.2 As

a result, Balkarran exited the roadway, struck, and destroyed a mailbox, and came to rest in a ditch. 3 At the time of the incident, Balkarran was driving a 2006 Honda (HPF 4697). 4 Kenneth Sitts

was charged with the following violations of the Vehicle and Traffic Law: VTL 600 OJA- leaving

the scene of an accident; VTL 511 01 A- Aggravated unlicensed operation of a motor vehicle; VTL

1198 7A- Interlock Violation; VTL 1128 OA Lane Violation; VTL 509 OJ - Unlicensed Driver. 5

Since Plaintiff's motion rests entirely on Plaintiff's unsigned, unsworn affidavit which is

of no probative value and inconsistent police reports. the Court must deny the motion, without

prejudice.

LAW AND DISCUSSION A. STANDARD OF LAW: SUMMARY JUDGMENT CPLR §3212 (b)

It is well-settled that the proponent of a motion for summary judgment must make a prima

facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to

demonstrate the absence of material issues of fact. See, Sillman v. Twentieth Century-Fox Film

2 Burke Aff f/3. 3 Burke Aff f/3; Ex. A. 4 Burke Aff. f/3. 5 Ex. 8.

[* 2] Corp., 3 N.Y.2d 395 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v.

City of New York, 49 N .Y.2d 557 (1980); Bhatti v. Roche, 140 A.D.2d 660 (2d Dept. I 988). To

obtain summary judgment, the moving party must establish its claim or defense by tendering

sufficient evidentiary proof, in admissible form, adequate to warrant the court, as a matter of law,

to direct judgment in the movant's favor. See , Friends of Animals, Inc. , v. Associated Fur Mfrs. ,

Inc., 46 N. Y.2d I 065 (I 979). Such evidence may include deposition transcripts, as well as other

proof annexed to an attorney's affirmation. See, CPLR § 3212 (b); Olan v. Farrell Lines, Inc. , 64

N.Y.2d 1092 (1985).

If a prima facie 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. See , Zuckerman, supra, 49 N.Y.2d, at 557. Mere conclusory or unsupported evidence will

not meet the burden. Id. lt is well-settled that on a motion for summary judgment, the facts must

be viewed in the light most favorable to the non-moving party. Ortiz v. Varsity Holdings, LLC, 18

N. Y. 3d 335 (201 1). When considering a motion for summary judgment, the function of the court

is not to resolve issues or determine credibility, but rather to determine if any material issues of

fact exist. See, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y .2d 395 ( 1957); Barr v. Albany

County, 50 N.Y.2d 247 ( 1980); Daliendo v. Johnson, 147 A.D.2d 3 12 (2d Dept. 1989). Conflicting

testimony creates a credibility issue that cannot be resolved on a summary judgment motion. Greco

v. Boyce, 262 A.O. 2d 734 (3d Dept. 1999); see also, Boyce v. Vazquez, 249 A.D. 2d 724 (3d Dept.

1998). If on a summary judgment motion the opposing parties submit conflicting expert opinions,

the resulting credibility issues must be resolved by a jury. Marshall v. Rosenberg, 196 A.D. 3d

817 (3d Dept. 202 1). Mere conclusions or unsubstantiated allegations are insufficient to raise a

triable issue. See, Gilbert Frank Corp. v. Federal ins. Co., 70 N.Y.2d 966 (1988).

Plaintiff argues that where there is an unexcused violation of the VTL , such violation

constitutes negligence per se. This includes crossing a double yellow line. Hazelton v. D.A.

Lajeunesse Eldg. And Remodeling Inc. , 38 AD. 3d I 07 1 (3d Dept. 2007). "A driver is not required

[* 3] to anticipate that a vehicle travelling in the opposite direction will cross over into oncoming

traffic." Lee v. Ratz, 19 A.D. 3d 552 (2d Dept. 2005); Dormena v. Wallace, 282 A.D. 2d 425 (2d

Dept. 2001 ). "[S]uch a scenario presents an emergency situation, and the actions of the driver

presented with [such a] situation must be judged in that context." Id. The Lee Court found that the

Court will evaluate whether the plaintiffs actions were reasonable given the context, or whether

the plaintiff was negligent himself. The Third Department in Fillette v. Lundberg dealt with a

similar situation where a car struck another car after crossing the double yellow line. Fillette v.

Lundberg, 150 A.D. 3d 1574 (3d Dept. 2017). The Court found that negligence per se applied after

defendant pied guilty to a traffic ticket for crossing the double yellow line. Id. And that the only

defense to such negligence per se would be an unforeseen medical, or other type of, emergency

not of the driver's own making. Id. In Fillette, both the plaintiff and defendant were deposed and

the defendant pied guilty to a traffic violation for crossing the double yellow line. However, in

Hazelton, the Third Department affirmed Supreme Court's grant of partial summary judgment

based upon affidavits of two eyewitnesses, the driver of another vehicle and the investigating State

Trooper. The appellate court rej ected as speculation and conjecture, Defendant's affidavit that he

believed that he had "blacked out" finding the claim unsupported by medical evidence and

therefore insufficient to create an issue of fact regarding an unforeseeable emergency. Supra at

1072. The Hazelton court rejected the defense claim that discovery had not been conducted since

defendant had ample opportunity to conduct same and failed to pursue discovery. Here, Plaintiff

submits an unsigned, unsworn affidavit of the Plaintiff. Unsigned, unsworn affidavits are

insufficient to establish a basis for summary judgment. See, Hoyos v. NY-1 095 Avenue of the

Americas, LLC, 156 AD3d 491 ( 151 Dept 2017); Derrick v North Star Orthopedics, P LLC, 121

AD3d 741 (2 nd Dept 20 140; Morrison v. Hindley, 221 AD2d 691 (3d Dept 1995); Board of Educ.

Of Town of Webb Un ion Free School Dist. v. Garland Co. , Inc. , 190 AD2d 1020 (4 1h Dept 1993).

Plaintiff's other proof, the Police Accident Reports, appear inconsistent, with such inconsistencies

unexplained. Both reports are labeled "Amended Reports" without indication of how or why they

were amended . The first report with a date and time stamp of 5/ 1 l /2023 00:48 states that Vehicle

[* 4] No. 1 was operated by Plaintiff Seuraj Balkarran in a southwesterly direction when an uninvolved

vehicle driving northeasterly, swerved and entered the opposite lane of traffic, nearly striking

Vehicle No. 1. Vehicle No. I made an evasive maneuver, exited the roadway, struck a mailbox

and came to rest in a ditch. This narrative is depicted in the accompanying diagram. The second

report (by date/time) with a date and time of 5/11/2023 01: 17 indicates that Defendant Kenneth R.

Sitts, the operator of Vehicle l was driving northeasterly, was di stracted by a squirrel, entered the

opposite lane of travel, nearly striking another vehicle, before striking and destroy ing a mailbox

and coming to rest in the ditch. That narrative is depicted in the accompanying diagram.

Defendants argue that summary judgment at this juncture is unwarranted as discovery is

ongoing. See, Abulhasan v. Uniroyal-Goodrich Tire Co. , 258 A. O. 2d 728 (3d Dept. 1999); Kelly

v. Fleet Bank, 229 A.O. 2d 659 (3d Dept. 1996); Sportiello v. City ofNew York, 6 A.O. 3d 421 (2d

Dept. 2004). While neither the drivers of the two vehicles involved in the accident nor the

passenger in Plaintiff s vehicle or the witness identified in the police report have been deposed,

the cases cited by De fendants do not address the precise legal issue involved in this case. In

addition, those cases are distingui shable on the status of discovery and/or efforts to enforce

discovery prior to the summary judgment motion and the findings of material issues of fact. The

better authority holds that summary j udgment is not precluded, even if discovery has not been had.

Hazelton, 38 AD. 3d at 107 1, 1072. Had Plaintiff submitted admissible evidence and shifted the

burden to Defendants to demonstrate an exception to the negligence per se rule, i.e. an unforeseen

and unexpected medical emergency, Defendants' failure to raise an emergency defense would have

required closer exam ination of the lack of discovery.

Defendants note that Balkarran submitted an affidavit that he has sustained "serious

injuries." 6 "Under New York's No- Fault Law, an injured party's right to bring a personal injury

action for noneconomic losses ... arising out of an automobile accident is limited to those instances

where such individual has incurred a serious injury" Jones v. Marshall, 147 A.D.3d 1279, 1283

6 Balkarran Aff f/7.

[* 5] (3d Dept 2017); Noor v. Fera, 200 AD3d 1366 (3d Dept 2021); see Insurance Law § 5104[a]).

Plaintiffs unsigned , unsworn affidavit does not establish that Plaintiff sustained a serious injury.

However, the issue of whether Plaintiff sustained a serious injury is generally one left to the jury

and while it can be determined on motion, no such motion is before the Court.

While Defendants appeal to a sense of fairness in requesting discovery to permit them to

defend this action, fairness may also dictate that the other party not be put through the time and

expense of litigating an issue on which there may be no triable issue of fact.

B. AFFIRMATIVE DEFENSES

An affirmative defense is one that shall be plead if it "would likely take the adverse party

by surprise if it were not, or that would raise issues of fact not appearing on the face of a prior

pleading." CPLR§3018 (b). "A party may move for judgment dismissing one or more defenses,

on the grounds that a defense is not stated or has no merit." CPLR §3211 (b). The motion is granted

if the plaintiff can demonstrate that the '·defenses are without merit as a matter oflaw because they

either do not apply under the factual ci rcumstances of [the] case or fai l to state a defense" Tenore

v. Kantrowitz, Goldhamer & Graifman, P. C, 76 A.O. 3d 556 (2010). The court should consider

the motion under the same standard that applies to motions to dismiss under CPLR Section 3211

(a)(7). Siegel, NY Prac. §269, at 449 (4 th Ed.); Greco v. Christofferson, 70 A.O. 3d 769 (20 I O);

Bank ofAmerica, NA v. 414 Midland Ave. Associations, LLC, 78 AD 3d 746 (2d Dept. 2019)- That

is, the pleading shall be afforded a liberal construction, the facts are accepted as true, and the

proponent of the pleading is accorded the benefit of every favorable inference. See, CPLR §3026;

Leon v. Martinez, 8-1 N. Y 2d 83 (1994); Cayuga Partners v. 150 Grand, 305 A.D. 2d 52 7 (2003);

Bank of America, supra, 78 AD 3d, at 746. Affirmative defenses that "merely plead conclusions

of law without any supporting facts" are insufficient and should be dismissed pursuant to CP LR

Section 3211 (b); see Bank a/America, supra, 78 AD 3d, at 746; Becher v. Feller, 64 AD 3d 672

(2d Dept. 2009). If there is any doubt as to the availability of a defense, it should not be dismissed.

Firemans Fund Ins. Co. v. Farrell, 57 A.D. 3d 72 1 (2d Dept. 2008), citing Becker v. Elm A.C.

Corp. , 143 A.O. 2d 965 (1988).

[* 6] Plaintiffs seek to dismiss Defendants' First Affirmative defense of culpable conduct; the

Fifth Affirmative defense of the negligence of an unknown third-party, and the Eighth Affirmative

Defense, i.e. facts, circumstances or conditions beyond the control of defendant that caused the

accident to be unavoidable. Despite Defendants' failure to specifically oppose this part of the

motion, this Court must decline to grant dismissal of these affirmative defenses for the same

reasons it denies summary judgment. The argument for dismissal is essentially that there is no

question of fact as to the cause of the accident. As stated above, the issues with Plain ti ff s moving

papers prevent the Court from granting summary judgment on liability or dismissal of the

affirmative defenses.

COURTS RULING ORDERED, that Plaintiff Seuraj Balkarran's motion for summary judgment on the issue

of liabi lity is hereby DENIED, without prejudice; and it is further

ORDERED, that Plaintiff Seuraj Balkarran's motion for summary judgment seeking

dismissal Defendants David D. Sitts' and Kenneth R. Sitts' Affirmative Defenses: First- culpable

conduct; Eighth- facts, circumstances or conditions beyond the control of defendant that caused

the accident to be unavoidable; and Fifth- negligence of an unknown third-party, is hereby

DENIED, without prejudice; and it is further

ORDERED that this decision constitutes the Order of this Court.

Dated: January 8, 2026 ~~d~2..~---<--= at Schenectady, New York HON. MICHAEL R. CUEVAS Supreme Court Justice

Papers Considered: NYSCEF: 9-15; 19-2 1

[* 7]