Motion for Summary Judgment in Esther Dipilato v. Andrew Scibelli, Sj Fuel Co. Inc., Anthony Dipilato, Alfred Dottario Jr.| Trellis.Law

On February 27, 2017 a Motion,Ex Parte was filed involving a dispute between Esther Dipilato, and Alfred Dottario Jr., Andrew Scibelli, Anthony Dipilato, Sj Fuel Co. Inc., for Torts - Motor Vehicle in the District Court of Richmond County.

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"C"
EXHIBIT
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____ ______________..___________-_______________..-.·--X
ESTHER DIPILATO,
Index No.: 750035/2018

Plaintiff,
NOTICE OF MOTION FOR
SUMMARY JUDGMENT
-against-

ANDREW SCIBELLI, SJ FUEL CO. INC., ANTHONY
DIPILATO, ALFREDO DOTTARIO JR. and

SAMMMO, LLC

Defendants.

ANDREW SCIBELLI AND SJ FUEL CO. C.,

Third Party Plaintiffs,

-against-

THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, AND THE
NEW YORK CITY DEPARTMENT OF PARKS AND
RECREATION,

Third Party Defendants.

____ X

PLEASE TAKE NOTICE, that upon the Affirmation of Karen C. Higgins. Esq., dated January 8,

2019, and the exhibits thereto, and all of the prior proceedings herein, Defendant Sammmo, LLC

shall move this Court, before Part C-2 of the Supreme Court, Richmond County, located at 26

Central Avenue, Staten Island, New York, on February 13, 2019 at 9:30 a.m., or as soon

thereafter as counsel can be heard, for an Order pursuant to CPLR 3212 granting Samimno,

LLC's motion for summary judgment dismissing with prejudice Plaintiff's Complaiñt against

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Sammmo LLC, and for such other, further and different relief as the Court deems just and

proper.

Dated: Bellmore, New York

January 8, 2019

Yours, etc.

Karen C. Higgins, Esq.
G , BENES, LLP
Attorneys forDefendant

SAMMMO, LLC
2nd
1666 Newbridge Road, FlOOr

Bellmore, New York 11710

(516) 512-6333

To: Robert J. Eisen, Esq.
SUBlN ASSOCIATES, LLP
Attorneys for Plaintiff
ESTHER DIPILATO
- 23rd
150 Broadway FlOOr
New York, New York 10038

WINGET, SPADAFORA &
SCHWARTZBERG, LLP
Attorneys for Defendants
Andrew Scibelli and
S.J. Fuel Co., Inc.
45 Broadway, 19th Floor
New York, New York 10096

Kelley A. Dunn

Zachary W. Carter
Corporation Counsel
Attorneys for Third Party Defendants
8"'
350 Jay Street, Floor

Brooklyn, New York 11201

Alfred Dottario Jr.
20 Samantha Lane
Staten Island, New York 10305

Anthony Dipilato
2

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1110 Woodrow Road
Staten Island, New York 10312

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SUPREME COURT STATE OF NEW YORK
COUNTY OF RICHMOND
------------------------------------------------------------------------X
ESTHER DIPILATO,

Plaintiff,

Index No. 750035/2018

-against-

ANDRBW SCIBELLI, SJ FUEL CO INC., ANTHONY
DIPILATO, ALFREDO DOTTARIO JR. and SAMMMO, LLC
...

Defendants.
--------- --------------------------------------------------------X
ANDREW SCIBELLI and SJ FUEL CO. INC.,

Third Party Plaintiffs,

-against-

THE CITY OFNEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, and THE NEW
YORK CITY DEPARTMENT OF PARKS AND RECREATION

ThirdParty Defendants.
. X

NOTICE OF MOTION FOR SUMMARY JUDGMENT

GOLD BENES LLP
Attorneys for Defendant
1666 Newbridge Road

Bellmore, New York 11710

(516) 512-6333

Fax: (516) 512-6334

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
-------------------------------------------------------------------X
ESTHER DIPILATO,
Index No.: 750035/2018

Plaintiff,
AFFIRMATION IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT
-against-

ANDREW SCIBELLI, SJ FUEL CO. INC., ANTHONY
DIPILATO, ALFREDO DOTTARIO JR. and

SAMMMO, LLC

Defendants.
_________________ _______..--------- X
ANDREW SCIBELLI AND SJ FUEL CO. INC.,

Third Party Plaintiffs,

-against-

THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, AND THE
NEW YORK CITY DEPARTMENT OF PARKS AND
RECREATION,

Third Party Defendants.

___________--- -----X

Karen C. Higgins, Esq., an attorney duly admitted to practice law in the Courts of the State of

New York, hereby affirms the following to be true, under the penalties of perjury:

1. I am an attorney associated with the law firm of GOLD BENES LLP, attorneys

for the defendant SAMMMO, LLC ("Sammmo"), and as such am fully familiar with the facts

and circumstances herein.

2. I submit this Affirmation in support of Defendant Sammmo's Motion for

Summary Judgment in the present case. Plaintiff asserts a cause of action for negligence against

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defendant Sammmo for injuries she sustained in a motor vehicle accident in which Sammmo was

neither a driver or a passenger in,or owner of, any o f thevehicles involved. Rather, Plaintiff

claims Sammmo breached a duty to her, a passenger in a car on a roadway, as an owner of the

premises adjacent to the public roadway on which the vegetation allegedly blocked the stop sign.

3. No such duty exists in common law or under any applicable statute or ordinance.

This precise issue has been resolved by the Appellate Division on numerous occasions and

Plaintiff has allbut conceded this issue. Accordingly, Sammmo is entitledto summary judgment

dismissing Plaintiff's Complaint in this action.

STATEMENT OF FACTS

4. On or about February 27, 2017, Plaintiff Esther Dipilato filed her Verified

Complaint. In her Amended Verified Complaint (the relevant pleading in the present action), a

"A,"
copy of which is attached hereto as Exhibit Plaintiff makes the following allegations,

among others, against Sammmo:

30. That at alltimes herein mentioned, the defendant SAMMMO, LLC was
the owner of the premises located at 105 Benton Avenue, Staten Island, New York,
adjacent to a stop sign/traffic device.

* * *

35. That at allthe times herein mentioned, the defendant SAMMMO, LLC's

property included trees with overhanging branches/shrubbery/hedges.

36. That at allthe times herein mentioned, the defendant SAMMMO, LLC's

property included trees with overhanging trees/shrubbery/hedges which obscured the
aforementioned stop sign/traffic control device.

37. That at allthe times hereinafter alleged, ESTHER DIPILATO, was a
passenger in a motor vehicle bearing registration number GWV3117 NY State owned by
defendant ANTHONY DIPILATO and operated by defendant ALFRED DOTTARIO JR,
with pennission and consent of the owner and/or within the scope of his employment.

38. That at allthe times herein mentioned, itwas the duty of the defendant(s),
itsagents, servants and/or employees to keep and maintain said premises, including the
trees with overhanging branches/shrubbery/hedges which obscured the stop sign/traffic

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control devices in a reasonable state of repair and good and safe condition, and not to
suffer and permit said premises become unsafe and dangerous to pedestrians and/or
motorists.

39. That on or about 9/1/2017, while plaintiff ESTHER DIPILATO was a
passenger in a motor vehicle bearing registration number GWV3117 NY State upon the
aforementioned roadway, plaintiff ESTHER DIPILATO was caused to be injured by
reason of the negligence, carelessness and want of proper care of the defendant(s), their

agents, servants and /or employees in that they caused the vehicle in which plaintiff was a
passenger to collide with a motor vehicle bearing registration number CPH3411 NY State
owned by defendant SJ FUEL CO., INC. and operated by defendant ANDREW
SCIBELLI with pennission and consent of the owner and/or within the scope of his
employment.

40. That the said incident and resulting injuries to the plaintiff were caused
through no fault of her own but were wholly by reason of the negligence of the

defendants, their agents, servants and/or employees in itsownership, maintenance,
operation and control of the aforesaid premises, in that they negligently and carelessly
suffered, allowed and permitted the aforesaid trees with overhanging
branches/shrubbery/hedges to obscure the aforementioned stop sign and/or trafficcontrol
device and to remain in an unsafe, dangerous and hazardous condition; in failing to

properly maintain and/or in improperly maintaining said trees with overhanging
branches/shrubbery/hedges; in causing said trees with overhanging
branches/shrubbery/hedges to obscure the aforementioned stop sign and/or trafficcontrol

devices; in failing to prune said trees with overhanging branches/shrubbery/hedges and in

improperly pruning said trees with overhanging branches/shrubbery/hedges; in failing to
clear overhanging branches/shrubbery/hedges; in preventing and obstructing the view of
motorists using said stop sign and/or traffic control devices, and in particular the vehicle
in which plaintiff was a passenger; in creating a condition of impending danger; in

generally maintaining said premises, including trees with overhanging
branches/shrubbery/hedges and creating, causing, allowing and permitting such a
dangerous defective and/or unsafe condition to exist so as to cause the incident herein
complained of; in creating and maintaining a menace, hazard, nuisance and trap thereat;
in failing to comply with the laws, statutes, ordinances and regulations made and
provided therefor.

41. That the said occurrence and resulting injuries of said plaintiff ESTHER
DIPILATO were caused through no fault of her own but were solely and whollyby
reason of the negligence of the aforementioned defendant, their agents, servants and/or

employees, as set forth above and by the nuisance maintained by the said defendant, as
herein set forth.

Id.

5. The above allegations of negligence comprise the sole cause of action asserted

against Defendant Sammmo in the present action. In itsVerified Answer (a copy of which is

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attached hereto as Exhibit "B"), Sammmo denies the allegations of negligence contained in the

Verified Complaint.

6. Defendant Sammmo hereby makes a motion for summary judgment based upon

the ground that Sammmo, as a matter of law, has no duty to the Plaintiff under the circumstances

alleged in the case.

PROCEDURAL HISTORY

7. Plaintiff had initially brought the present action in Kings County under the Index

No. 503889/2017 ("2017 Action"). The parties in the 2017 Action had answered the complaints,

brought in the New York City entities as third-party defendants, and had moved to transfer venue

to Richmond County, where the accident took place.

8. Oddly, on June 18, 2018, the Plaintiff in the 2017 Action commenced another

action in Kings County, for no apparent reason, against the same defendants, with nearly

identical allegations. The Index No. for that action was 512538/2018 ("2018 Action"). On July

17, 2018, Sammmo moved to dismiss the 2018 Action based upon the same ground as the

present motion. Plaintiff opposed that motion, and Sammmo served itsreply papers.

9. On August 3, 2018, Sammmo cmss-moved to consolidate the 2017 Action and the

2108 Action, transfer venue to Richmond County, and, ifthe Court did not transfer venue,

Sammmo asked that the Motion to Dismiss in the 2018 Action be treated as a motion for

summary judgment in the 2017 Action. Plaintiff opposed that cross-motion, which was fully

submitted.

10. On October 11, 2018, Plaintiff filed an omnibus motion in the 2017 Action

seeking, among other relief, leave to amend her complaint to include claims against the principal

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of Sammmo and the landscaper. In their Affidavit in support of that motion, Plaintiff's counsel

stated as follows:

Despite a diligent search, your affiant was not able to locate any laws, codes, ordinances,
etc.,that directly place the duty upon the landowner or vest responsibility with
municipalities regarding the defective condition of the overgrowth and stop sign.

"C."
See Affidavit in Support of Motion, at 16, a copy of which is annexed hereto as Exhibit

Defendant Sammmo opposed some of the relief sought by the Plaintiff in that motion, including

the motion to amend to include those other parties.

11. On October 29, 2018, Sammmo laterseparately cross-moved in the 2017 Action

for Summary Judgment, which motion had not been opposed yet by Plaintiff prior to the Court's

Orders discussed in the paragraph below.

12. On December 11, 2018, the Court, in Kings County, issued Orders consolidating

the 2018 Action into the 2017 Action and transferring the newly consolidated present action to

Richmond County. A copy of those two Orders and the Clerk's Certification of the Minutes with
.

the filed document list are annexed hereto as Exhibit "D

13. There currently is pending before this Court an action brought by a different

plaintiff involving the same motor vehicle accident and similar allegations against Sammmo.

Defendant Sammmo moved in that case for summary judgment on the same basis as the present

motion. That motion, made in the action entitled Andrew Scibelli v. City of New York, et al.,

151036/2017 (N.Y. Sup. Ct. Richmond Cty.) ("Related Scibelli Action"), is fullysubmitted and

the parties are awaiting a decision by this Court.

14. The aforementioned Motions to Dismiss and Cross Motion for Summary

Judgment, made by Sammmo in the 2018 Action and 2017 Action, respectively, were never

decided prior to the Court transferring the consolidated present action to Richmond County. The

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Court in Kings County marked those motions as withdrawn when ittransferred the cases to

"E."
Richmond County. See eFiled Documents Detail, annexed hereto as Exhibit Accordingly,

Defendant Sammmo re-makes the present motion for summary judgment.

ARGUMENT

PLAINTIFF'S COMPLAINT AGAINST PREMISES OWNER SAMMMO FOR NOT
PROPERLY MAINTAINING VEGETATION ON PROPERTY AD JACENT TO THE
PUBLIC ROADWAY MUST BE DISMISSED, AS A MATTER OF LAW,
B.ECAUSE NO SUCH DUTY EXISTS

15. The purpose of a summary judgment motion is to "expedite all civilcases by

law."
eliminating from the trial calendar that which can be properly resolved as a matter of

Andre v. Pomeroy, 35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974). In deciding

summary judgment motions, Courts are not obligated to seek out speculative issues for a jury to

decide, on the chance that a trialmay disclose something that pretrial proceedings have not. Id.

Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions by counsel

are insufficient to defeat a motion for süuüüâry of jmigment. Alvord & Swift v. Stuart M. Muller

Construction Co., 46 N.Y.2d 276, 385 N.E.2d 1238, 413 N.Y.S.2d 309 (1978).

16. Summary judgment should be granted without hesitation in actions where there is

no meritorious cause of action. See Lominitz v. Town of Woodbury, 81 A.D.2d 828, 829, 438

N.Y.S.2d 825 (2d Dept 1981). As the Court of Appeals held, in Zuckerman v. New York, 49

N.Y.2d 557, 562, 404 N.E.2d 718, 720, 427 N.Y.S.2d 595, 597 (1980):

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To obtain summary judgment itis necessary that the movant establish his cause of action
judgment"
or defense "sufficiently to warrant the court as a matter of law in directing in
his favor ( CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in
admissible form. On the other hand, to defeat a motion for summary judgment the opposing
fact"
party must "show facts sufficient to require a trialof any issue of ( CPLR 3212, subd
[b]). Normally ifthe opponent is to succeed in defeating a summary judgment motion he,
too, must make his showing by producing evidentiary proof in admissible form.

Plaintiffs'
17. Itis clear, based upon own allegations in her Verified Complaint and

counsel's own admissions in the prior motion papers, as well as clear legal precedent, that

Plaintiff does not have a meritorious cause of action against Sammmo in the present action.

18. Plaintiff has asserted negligence as the sole cause of action against Defendant

Sammmo. See Ex. A, Second Cause of Action. To establish a prima facie claim of negligence, a

plaintiff must demonstrate: (1) a duty owed by the defendant to the plaintiff; (2) a breach thereof;

and (3) injury proximately resulting therefrom. Solomon v City of New York, 66 N.Y.2d 1026,

489 N.E.2d 1294, 499 N.Y.S.2d 392 (1985).

19. In order to recover damages for negligence, a plaintiff must show, among other

elements, that the defendant owed a duty of care to the plaintiff. See Eiseman v. State, 70

N.Y.2d 175, 187, 511 N.E.2d 1128, 1134, 518 N.Y.S.2d 608, 614 (1987).

Embedded in the law of this State is the proposition that a duty of reasonable care owed

by the tort-feasor to the plaintiff is elemental to any recovery in negligence.

Foreseeability of injury does not determine the existence of duty. Unlike foreseeability
and causation, both generally factual issues to be resolved on a case-by-case basis by the
fact finder, the duty owed by one member of society to another is a legal issue for the
courts.

Id. (citations omitted). Without such a duty, there can be no recovery bythe plaintiff. Id.;

Ingenito v. Rosen, 187 A.D.2d 487, 589 N.Y.S.2d 574 (2d Dep't 1992).

20. In the present action, Plaintiff alleges in her Verified Complaint that Defendant

Sammmo owed Plaintiff the following duty:

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38. That at allthe times herein mentioned, itwas the duty of the defendant(s), its

agents, servants and/or employees to keep and maintain said premises, including the trees
with overhanging branches/shrubbery/hedges which obscured the stop sign/traffic control
devices in a reasonable state of repair and good and safe condition, and not to suffer and
permit said premises become unsafe and dangerous to pedestrians and/or motorists.

Ex. A.

21. Plaintiff failed to cite to any authority imposing such a duty on the owners of

premises that abut public roadways, nor can she. Itis well settled law that a property owner does

not have any common law duty to trim the foliage or vegetation located on theirproperty for the

benefit of public roadway users or to enhance the visibility at the intersection. See Agostino v.

Masi, 28 A.D.3d 501, 813 N.Y.S.2d 491 (2d Dep't 2006); Szela v. Courtier, 278 A.D.2d 485,

(3rd
718 N.Y.S.2d 80 (2d Dep't 2000); Cain v. Pappalardo, 225 A.D.2d 1005, 639 N.Y.S.2d 570

Dep't 1996).

22. Courts have even held that there is no such common law duty under precisely the

same facts as the Plaintiff alleges in the present action -- where the vegetation is alleged to have

obscured the stop sign on the public roadway. Szela, 278 A.D.2d at 485-486, 718 N.Y.S.2d at 81;

Cain, 225 A.D.2d at 1006, 639 N.Y.S.2d at 572.

23. Indeed, absent a statute or local ordinance within the jurisdiction of the accident,

there isno duty to maintain the vegetation or trees on one's property for the benefit of public

roadway users. See, e.g., Perlak v. Sollin, 291 A.D.2d 540, 541, 737 N.Y.S.2d 660, 661 (2d

Dep't 2002) (""There is no common law duty of a landowner to control the vegetation on his or

her property for the benefit of users of a public highway.")

24. In response to the prior motion made by Defendant Sammmo in the 2017 Action,

the Plaintiff could not cite to any statute or cidinance that imposes such a duty on a landowner in

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New York City or the Borough of Staten Island. In fact,as discussed above, Plaintiff's counsel

conceded that they are unable to do so:

Despite a diligent search, your affiant was not able to locate any laws, codes,
ordinances, etc.,that directly place the duty upon the landowner or vest

responsibility with municipalities regarding the defective condition of the
overgrowth and stop sign.

Ex. C at 16.

25. Accordingly, as a matter of law, no such duty of care exists in this case.

26. Having failed to plead the critical element of a duty of care owed by Defendant

Sammmo to the Plaintiff under the circumstances of the alleged collision, Plaintiff has failed, as

a matter of law, to state a cause of action for negligence.

27. Accordingly, Defendant Sammmo requests an Order granting itsmotion for

summary judgment pursuant to CPLR 3212, dismissing Plaintiff's Verified Complaint against it

in the present action with prejudice.

WHEREFORE, for all of the foregoing reasons, Defendant Sammmo, LLC respectfully

requests an Order granting itsmotion for summary judgment pursuant to CPLR 3212, dismissing

Plaintiff's Verified Complaint against itwith prejudice, and for such other and further relief as this

Court deems just and proper.

Dated: Bellmore, New York

January 8, 2019

I{are C. Higgins, Esq.

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Document Filed Date

February 02, 2019

Case Filing Date

February 27, 2017

County

Parties

Alfred Dottario JR. Defendant
Andrew Scibelli Defendant
Anthony Dipilato Defendant
Esther Dipilato Plaintiff
ISAAC, BRIAN J. Attorney for the Plaintiff
LEBOWITZ, IRA H. Attorney for the Defendant
MCLELLAN, KENNETH ANDREW Attorney for the Defendant
ROUSSEL, KEITH ROBERT MARTIN Attorney for the Defendant
SHAPIRO, ADAM PHILIP Attorney for the Defendant
SJ FUEL CO. INC. Defendant
SUBIN, HERBERT S Attorney for the Plaintiff
ANN BRODERICK Attorney
LEE HUTTNER Attorneys for Plaintiffs
JEFF GOLAND Attorney
ROBERT EISEN Attorneys for Plaintiffs
KAREN HIGGINS Attorney
ADAM HEBERT Attorneys for Defendants
JEFFREY GOLDEN Attorneys for Defendants
JESSE EISEN Attorneys for Plaintiffs
Adam Shapiro Attorney
JEAN GRAZIANO Attorneys for Plaintiffs
JACK STERN Attorney
LOUIS GRANDELLI Attorneys for Plaintiffs
DAVID BENDIK Attorneys for Defendants
KELLEY DUNN Attorney
BROOKE LOMBARDI Attorneys for Plaintiffs
Lee Armstrong Attorney
BARRY GOLD Attorneys for Defendants
LEE BENDER Attorneys for Plaintiffs
FRANK MELENDEZ Attorneys for Plaintiffs
LEIGH ESKENASI Attorneys for Plaintiffs
ANDREW REINERS Attorneys for Defendants
ZACHARY CARTER Attorneys for Defendants
JIAN MA Attorney
EMILY GOLD Attorney
LYDIA LEE Attorneys for Plaintiffs
JEFFREY OSTER Attorneys for Defendants
ADAM ROBBINS Attorney
JEFFREY BODOFF Attorneys for Defendants
JAMES JOHNSON Attorneys for Defendants
GIANNA FAMULARI Attorney
OLGA ROZDOLSKA Attorneys for Defendants
LEONE BERNSTEIN Attorneys for Defendants
RICHARD LICATA Attorneys for Defendants
ARI LIEBERMAN Attorneys for Plaintiffs
MARY HOLSTON Attorney
BARNETT GOLD Attorney
JEFFREY GOLD Attorneys for Defendants
GREGORY FREEDMAN Attorneys for Plaintiffs
AMY DUNN Attorney
CAITLIN HIGGINS Attorneys for Defendants

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Motion,Ex Parte: Esther Dipilato v. Andrew Scibelli, Sj Fuel Co. Inc., Anthony Dipilato, Alfred Dottario Jr.

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