The instant affirmation addresses three issues:
a) Whether VTL §388 is constitutional. Defendants CAB EAST LLC and JAGUAR CREDIT CORPORATION are vicariously liable under VTL §388 because the State and Federal Courts of New York have repeatedly held that VTL §388 is constitutional as to lessors such as the moving Defendants herein. As set forth below and in the accompanying memorandum of law, Defendants’ cross-motion, seeking an order that VTL § 388 is unconstitutional, should be denied in its entirety;
b) Whether this Court should grant Plaintiff’s motion for summary judgment on liability as against all Defendants because there are no material issues of fact concerning Defendants’ liability. Defendant DONNA A. DASHOSH admits that she was the operator of the Jaguar when it hit Plaintiff ADRIANA MELNICHENKO was struck. The only “issues of fact” Defendants have raised are either incorrect or not material. As set forth below and as demonstrated in Plaintiff’s motion papers, Defendants have not raised any material issues of fact in opposition to Plaintiff’s motion for summary judgment. Thus, Plaintiff’s motion for summary judgment on liability should be granted;
c) Whether Defendants’ answer should be stricken because of their failure to schedule Plaintiff’s medical examinations. Inasmuch as Defendants have finally scheduled medical examinations of the Plaintiff, albeit only after Plaintiff sought to have Defendants’ answer stricken, Plaintiff withdraws that portion of her motion that sought to strike Defendants’ Answers.
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