Rivera-Vega v United Talmudical Academy of Boro Park, Inc. 2024 NY Slip Op 33669(U) October 15, 2024 Supreme Court, Kings County Docket Number: Index No. 511598/2020 Judge: Francois A. Rivera 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 10/16/2024 09:15 AM INDEX NO. 511598/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/16/2024
At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 15 th day of October 2024
HONORABLE FRANCOIS A. RIVERA -----. --·. ---------------------. - ·-------------------------------- .X ANDREA RIVERA-VEGA and ANGEL D. BURGOS, DECISION & ORDER Plaintiff, Index No.: 511598/2020
- against - Oral Argument: 9/12/2024
UNITED T ALMUDICAL ACADEMY OF BORO Cal. No.: 45 & 46 PARK, INC., and PAVEL S. YAROSLAVSKIY Ms.No.:4&5 Defendants. -------------------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 12, 2024, under motion sequence number four, by Andrea Rivera-Vega and Angel D. Burgos (hereinafter plaintiffs) for an order pursuant to CPLR 3212 (1) granting plaintiffs summary judgment on the issue ofliability as against United Talmudical Academy ofBoro Park~ Inc. and Pavel S. Yarosavskiy (hereinafter the defendants), and (2) for an order dismissing the defendants' counterclaim, and first, second, third, sixth, eighth, ninth, and tenth affirmative defenses. 1 The motion is opposed.
-Notice of motion -Affirmation in support Exhibits A-D -Statement of material facts -Affirmation in opposition Exhibits A-C -Counter Statement of material facts -Affirmation in reply
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross-motion filed on February 27, 2024, under motion sequence number five, by plaintiff/counterclaim defendant Angel D. Burgos for an order pursuant to CPLR 3212
1 The eighth, ninth, and tenth affirmative defenses were withdrawn on the record.
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granting summary judgment on the issue of liability and dismissing the counterclaim asserted against him. The cross-motion is opposed.
-Notice of cross-motion -Affirmation in support Exhibits A-J -Statement of material facts -Affirmation in opposition -Counter statement of material facts -Affirmation in reply
BACKGROUND On July 6, 2020, the plaintiffs commenced the instant action for damages for
personal injury by filing a summons and verified complaint with the Kings County
Clerk's office (KCCO). On July 21, 2020, the plaintiffs filed an amended verified
complaint with the KCCO.
On September 4, 2020, the defendants interposed and filed a joint verified answer
with counterclaims with the KCCO. The verified answer asserted twelve affirmative
defenses and one counterclaim asserted against Angel D. Burgos. and first, second, third,
sixth, eighth, ninth, and tenth affirmative defense.
As relevant to the instant motion the first affirmative defense asserts that the
dangerous situation was opinion and obvious. The second affirmative defense asserts
that the plaintiffs' negligence contributed to the subject accident. The third affirmative
defense asserts that the subject accident was caused by third parties. The sixth
affinnative defense asserts that the plaintiffs' injuries were caused by the ph:i.intiffs'
failure to properly use a seat belt. The eighth affirmative defense asserts that plaintiffs'
claims are barred by the doctrine of res judicata. The ninth affirmative defense asserts
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that plaintiffs' claims are barred by the doctrine of collateral estoppel. The tenth
affirmative defense asserts that the plaintiffs executed a prior release of all their claims.
On May 10, 2021, plaintiff/counterclaim defendant Angel D. Burgos interposed
and filed a reply to the defendants' counterclaim with the KCCO. On February 1, 2024,
the plaintiffs filed a note of issue.
The plaintiffs' amended verified complaint alleges the following salient facts. On
August 8, 2018, plaintiff Andrea Rivera Vega was a passenger in vehicle bearing New
York license plate number HVN6663, that was owned and being operated by her husband,
plaintiff Angel D. Burgos. On that date the plaintiffs were traveling on 11th Avenue
toward the intersection of 77 th Street, Brooklyn, New York. On the same date, time, and
place, Pavel S. Yaroslavskiy was operating a school bus bearing New York license plate
number 59343BA, with the permission of its owner United Talmudical Academy ofBoro
Park, Inc. On the same date, time, and place, Y aroslavskiy was traveling on 77 th Street
toward the intersection of 11 th Avenue. The vehicles collided within the intersection of
11 th avenue and 77 th street (hereinafter the subject accident). The subject accident was
caused by Pavel S. Yaroslavskiy's negligent operation of his motor vehicle. The subject
accident caused serious physical injury to Andrea Rivera Vega and caused her spouse,
Angel D. Burgos, to suffer the loss of her services and consortium.
The defendants verified answer with counterclaims alleges that the subject
accident was caused in whole or in part by Angel D. Burgos's negligent operation of his
vehicle.
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LAW AND APPLICATION
In support of the motion the plaintiffs submitted, among other things, their
respective deposition testimony and the deposition testimony of defendant Y aroslavskiy.
All three depositions establish that Yaroslaskiy was traveling on 77 th street, a one-way
street, toward the intersection of 11 th avenue. His direction of travel was controlled by a
stop sign. He proceeded passed the stop sign and the front of his bus struck the passenger
side of the plaintiffs' vehicle. The plaintiffs were traveling on 11 th Avenue, a two-way
roadway with no traffic control device in their direction of travel toward 77 th Street.
Angel D. Burgos' testified that he and his wife were both wearing their seatbelts
and that he did not see the bus before the contact occurred. Andrea Burgos testified that
she was a passenger, that her husband was driving, and that she saw the bus approaching
the stop sign and continued to pass it without stopping. She further testified that the
movement of the bus and the collision was so fast that she did not have time to warn her
husband.
"Pursuant to Vehicle and Traffic Law§ 1142 (a), a driver entering an intersection
controlled by a stop sign must yield the right-of-way to any other vehicle that is already
in the intersection or that is approaching so closely as to constitute an immediate hazard"
(Cruz v DiSalvo, 188 AD3d 986, 987 [2d Dept 2020]; see Shuofang Yang v Sanacore,
202 AD3d 1120, 1121 [2d Dept 2022]). "Even though the driver with the right-of-way is
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Rivera-Vega v United Talmudical Academy of Boro Park, Inc. 2024 NY Slip Op 33669(U) October 15, 2024 Supreme Court, Kings County Docket Number: Index No. 511598/2020 Judge: Francois A. Rivera 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 10/16/2024 09:15 AM INDEX NO. 511598/2020 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/16/2024
At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 15 th day of October 2024
HONORABLE FRANCOIS A. RIVERA -----. --·. ---------------------. - ·-------------------------------- .X ANDREA RIVERA-VEGA and ANGEL D. BURGOS, DECISION & ORDER Plaintiff, Index No.: 511598/2020
- against - Oral Argument: 9/12/2024
UNITED T ALMUDICAL ACADEMY OF BORO Cal. No.: 45 & 46 PARK, INC., and PAVEL S. YAROSLAVSKIY Ms.No.:4&5 Defendants. -------------------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on February 12, 2024, under motion sequence number four, by Andrea Rivera-Vega and Angel D. Burgos (hereinafter plaintiffs) for an order pursuant to CPLR 3212 (1) granting plaintiffs summary judgment on the issue ofliability as against United Talmudical Academy ofBoro Park~ Inc. and Pavel S. Yarosavskiy (hereinafter the defendants), and (2) for an order dismissing the defendants' counterclaim, and first, second, third, sixth, eighth, ninth, and tenth affirmative defenses. 1 The motion is opposed.
-Notice of motion -Affirmation in support Exhibits A-D -Statement of material facts -Affirmation in opposition Exhibits A-C -Counter Statement of material facts -Affirmation in reply
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross-motion filed on February 27, 2024, under motion sequence number five, by plaintiff/counterclaim defendant Angel D. Burgos for an order pursuant to CPLR 3212
1 The eighth, ninth, and tenth affirmative defenses were withdrawn on the record.
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granting summary judgment on the issue of liability and dismissing the counterclaim asserted against him. The cross-motion is opposed.
-Notice of cross-motion -Affirmation in support Exhibits A-J -Statement of material facts -Affirmation in opposition -Counter statement of material facts -Affirmation in reply
BACKGROUND On July 6, 2020, the plaintiffs commenced the instant action for damages for
personal injury by filing a summons and verified complaint with the Kings County
Clerk's office (KCCO). On July 21, 2020, the plaintiffs filed an amended verified
complaint with the KCCO.
On September 4, 2020, the defendants interposed and filed a joint verified answer
with counterclaims with the KCCO. The verified answer asserted twelve affirmative
defenses and one counterclaim asserted against Angel D. Burgos. and first, second, third,
sixth, eighth, ninth, and tenth affirmative defense.
As relevant to the instant motion the first affirmative defense asserts that the
dangerous situation was opinion and obvious. The second affirmative defense asserts
that the plaintiffs' negligence contributed to the subject accident. The third affirmative
defense asserts that the subject accident was caused by third parties. The sixth
affinnative defense asserts that the plaintiffs' injuries were caused by the ph:i.intiffs'
failure to properly use a seat belt. The eighth affirmative defense asserts that plaintiffs'
claims are barred by the doctrine of res judicata. The ninth affirmative defense asserts
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that plaintiffs' claims are barred by the doctrine of collateral estoppel. The tenth
affirmative defense asserts that the plaintiffs executed a prior release of all their claims.
On May 10, 2021, plaintiff/counterclaim defendant Angel D. Burgos interposed
and filed a reply to the defendants' counterclaim with the KCCO. On February 1, 2024,
the plaintiffs filed a note of issue.
The plaintiffs' amended verified complaint alleges the following salient facts. On
August 8, 2018, plaintiff Andrea Rivera Vega was a passenger in vehicle bearing New
York license plate number HVN6663, that was owned and being operated by her husband,
plaintiff Angel D. Burgos. On that date the plaintiffs were traveling on 11th Avenue
toward the intersection of 77 th Street, Brooklyn, New York. On the same date, time, and
place, Pavel S. Yaroslavskiy was operating a school bus bearing New York license plate
number 59343BA, with the permission of its owner United Talmudical Academy ofBoro
Park, Inc. On the same date, time, and place, Y aroslavskiy was traveling on 77 th Street
toward the intersection of 11 th Avenue. The vehicles collided within the intersection of
11 th avenue and 77 th street (hereinafter the subject accident). The subject accident was
caused by Pavel S. Yaroslavskiy's negligent operation of his motor vehicle. The subject
accident caused serious physical injury to Andrea Rivera Vega and caused her spouse,
Angel D. Burgos, to suffer the loss of her services and consortium.
The defendants verified answer with counterclaims alleges that the subject
accident was caused in whole or in part by Angel D. Burgos's negligent operation of his
vehicle.
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LAW AND APPLICATION
In support of the motion the plaintiffs submitted, among other things, their
respective deposition testimony and the deposition testimony of defendant Y aroslavskiy.
All three depositions establish that Yaroslaskiy was traveling on 77 th street, a one-way
street, toward the intersection of 11 th avenue. His direction of travel was controlled by a
stop sign. He proceeded passed the stop sign and the front of his bus struck the passenger
side of the plaintiffs' vehicle. The plaintiffs were traveling on 11 th Avenue, a two-way
roadway with no traffic control device in their direction of travel toward 77 th Street.
Angel D. Burgos' testified that he and his wife were both wearing their seatbelts
and that he did not see the bus before the contact occurred. Andrea Burgos testified that
she was a passenger, that her husband was driving, and that she saw the bus approaching
the stop sign and continued to pass it without stopping. She further testified that the
movement of the bus and the collision was so fast that she did not have time to warn her
husband.
"Pursuant to Vehicle and Traffic Law§ 1142 (a), a driver entering an intersection
controlled by a stop sign must yield the right-of-way to any other vehicle that is already
in the intersection or that is approaching so closely as to constitute an immediate hazard"
(Cruz v DiSalvo, 188 AD3d 986, 987 [2d Dept 2020]; see Shuofang Yang v Sanacore,
202 AD3d 1120, 1121 [2d Dept 2022]). "Even though the driver with the right-of-way is
entitled to assume that other drivers will obey the traffic laws requiring them to yield, he
or she still has a duty to exercise reasonable care to avoid a collision with another vehicle
already in the intersection" (Parkv Giunta, 217 AD3d 661,662 [2d Dept 2023]).
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Plaintiffs' evidentiary submission made a prima facie showing that the sole
proximate cause of the subject accident was the negligence of defendant Yaroslavskiy by
entering 11 th avenue before it was safe to do so and by failing to yield to the oncoming
traffic on 11 th Avenue. For the same reason, the affirmative defenses of plaintiff alleging
culpable conduct in causing the subject accident are struck.
In opposition, the defendants' sole contention was that Angel D. Burgos must bear
some fault for the subject accident by not seeing what was there to see. The defendants made no other arguments in opposition to the motion, including the motion to strike their
affirmative defenses. The defendants' opposition did not raise a triable issue of fact.
Andrea Burgos's testimony demonstrates that the .collision occurred so fast that
she had no time to warn her husband of the oncoming bus. Therefore, Angel D. Burgos's
failure to see the bus before the collision occurred did not proximately cause the subject
accident.
CONCLUSION
The motion by plaintiffs Andrea Rivera-Vega and Angel D. Burgos for an order
pursuant to CPLR 3212 granting the plaintiffs summary judgment on the issue of liability
as against United Talmudical Academy ofBoro Park, Inc. and Pavel S. Yarosavskiy is
granted.
the motion by plaintiffs Andrea Rivera-Vega and Angel D. Burgos and the cross..
motion by Angel D. Burgos seeking an order dismissing the defendants' counterclaim
asserted against Angel D. Burgos is granted.
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The motion by plaintiffs Andrea Rivera-Vega and Angel D. Burgos for an order
dismissing the defendants' first, second, third, and sixth affirmative defenses is granted.
The foregoing constitutes the decision and order of this Court.
ENTER:
J.S.C. HON. FRANCOIS A. RIVERA
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