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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
CLYDE OLIVER,
AFFIRMATION IN OPPOSITION
Plaintiff,
TO PLAINTIFF'S APPLICATION
-vs-
FOR AN ORDER TO SHOW
CAUSE
FRADEAU DES AMES POUR CHRIST,
COULANGEFUSLER,
Index No. 504500/2013
CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
GARY H. ABELSON, a duly admitted attorney of the State of New York, upon penalty
of perjury, affirms and states as follows:
1. 1 am an attorney at law of the State of New York, and a partner with Barclay
Damon LLP, attorneys for defendant Christian Disciples of Christ ("CDC") in the above-entitled
action. As such, 1 have personal knowledge of the matters stated herein. I make this affirmation
in opposition to plaintiff's application for an order to show cause, filed with this Court on
December 13, 2017.
2. This matter arises out of a motor vehicle accident which occurred on January 11,
2015, in Brooklyn, New York, involving a collision of a van with a pedestrian, plaintiff Clyde
Oliver. It is undisputed that the van in question was owned by defendant Fradeau Des Ames
Pour Christ ("Fradeau"), a Brooklyn church, and operated by defendant Coulange Fusler, a
member ofthe Fradeau congregation.
3. CDC sought dismissal of plaintiff's action on the grounds that CDC had no
control whatsoever over the van involved in the accident, and had no relationship with Fusler or
anyone else connected with Fradeau which would justify imposition of vicarious liability for the
accident.
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4. On June 27, 2017, this Court granted CDC's motion for summary judgment
(sequence #2) upon plaintiff's failure to appear on the return date of that motion. See Order,
"A."
dated June 27, 2017, attached hereto as Exhibit
5. To have the default order vacated, plaintiff's counsel must provide evidence of an
excusable default and a meritorious cause of action in their moving papers. In this case,
plaintiff's counsel has shown neither and the relief which plaintiff seeks must be denied in all
respects.
6. June 27, 2017 was not the first return date for this motion that plaintiff's counsel
was obliged to diary. CDC first filed its motion to dismiss plaintiff's action more than a year
"B."
earlier, on June 6, 2016. See Notice of Motion, attached hereto as Exhibit
7. CDC's motion was firstreturnable on July 11, 2106. Itwas adjourned to October
26, 2016, adjourned again to January 17, 2017, adjourned again to January 31, 2017, adjourned
again to April 25, 2017, and finally adjourned to June 27, 2017. See Appearance Detail printout
"C."
for this action, attached hereto as Exhibit The Court's docket sheet is readily and publicly
available, and plaintiff's counsel has no valid excuse for failing to consult the docket sheet,
particularly in view of the numerous prior adjournments.
8. Moreover, your affirmant was in regular communication by electronic mail with
counsel for plaintiff, reminding plaintiff's counsel that the return date for CDC's motion for
summary judgment was set for June 27, 2017. I sent e-mails to plaintiff's counsel on May 8,
2017, May 16, 2017, June 14, 2017, and June 15, 2017, alladdressed the upcoming return date.
"D."
See correspondence attached hereto as Exhibit Moreover, each of the emails in question
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was addressed not but two attorneys at the same firm plaintiff -
to, one, representing Jeremy
Iandolo, Esq., and Anthony Varbero, Esq. Contrary to the protestations in plaintiff counsel's
affirmation, there is no valid excuse for counsel's failure to properly calendar June 27 as the
sixth and final return date for CDC's motion.
9. Contrary to Plaintiff counsel's claim in Paragraph 5 of his Affirmation, plaintiff's
"days"
application is not made within of the granting of the motion but rather almost six (6)
months later. Plaintiff's counsel did file something on or about June 30, 2017 but never followed
through with having the matter heard at that time.
10. Plaintiff's counsel sets forth nothing more than stating the case was supposedly
miscalendared in their office but supplies no further information or detail as to what occurred.
Notably, there are two counsel for plaintiff and neither showed up on the return date.
11. Without more, merely stating that the matter was calendared incorrectly does not
suffice as an excusable default and thus plaintiff's application should be denied on that basis
alone. (See Memo of Law submitted herewith)
12. Furthermore, as amply demonstrated by CDC's submissions and the exhibits
thereto, most notably the depositions of Reverend Christophe Leger, Fradeau's pastor and
founder, and Dr. Sharon E. Watkins of CDC, CDC has absolutely no connection to either the
Fradeau van or its driver involved in the subject accident which would support imposition of
liability on CDC in this case. See Reply Affirmation of Jeffrey A. Domoto, Esq., dated July 6,
2016, attached hereto as Exhibit "E"; Sur-Reply Affirmation of Gary H. Abelson, Esq., dated
June 20, 2017, attached hereto as Exhibit "F"; and Sur-Reply Memorandum of Law, dated June
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"G"
20, 2017, attached hereto as Exhibit and incorporated herein as if fully set forth. (The full
deposition transcripts of Reverend Christophe Leger and Dr. Sharon Watkins, referred to in these
documents, are e-filed at documents 46 and 47 respectively).
13. This is simply an accident involving a van owned by Fradeau and operated by the
defendant Fusler who was a member of the congregation. CDC had no ownership interest in any
vehicle owned by Fradeau, and CDC had no control, maintenance, or operational abilities over
the vehicle owned by Fradeau that was involved in the accident. Defendant Fusler, and for that
matter Rev. Leger, were never employees of the CDC.
14. To establish negligence the plaintiff must demonstrate there was a duty owed to
him by the defendant CDC. In the absence of such a duty there can be no breach and without a
breach there can be no (see memorandum of law - Exhibit G).
liability sur-reply
15. Defendant CDC clearly had no duty to the plaintiff with respect to the vehicle in
question and therefore there can be no liability.
16. Further, plaintiff's counsel asserts that CDC should be held liable for the accident
on the theory of negligent entrustment.
17. However, as set forth in defendant's Sur-Reply Memorandum of Law, negligent
entrustment requires four elements, none of which apply in this case.
18. CDC did not entrust the vehicle owned by Fradeau to the driver, Fuster; they had
no ownership interest in any vehicle owned by Fradeau and they had no control, maintenance or
operational responsibilities over the vehicle that was involved in the accident. Thus there is no
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negligent entrustment cause of action and summary judgment should be granted on that claim.
19. Finally, there is a claim that CDC should be held responsible under a negligent
hiring and/or respondeat superior theory, both of which do not apply.
20. As set forth in the Sur-Reply Memorandum of Law, the doctrine of respondeat
superior renders an employer vicariously liable for torts committed by an employee acting
within the scope of employment.
21. In this case, the testimony is clear that Fusler was not an employee of CDC, nor
was he an employee, for that matter, of Fradeau. Therefore respondeat superior fails as does any
claim of any negligent hiring or negligent retention of an employee since Fusler was not an
employee of Fradeau or CDC but just a member of the congregation. Leger Dep., 57:15-19.
22. In opposing CDC's motion for summary judgment, plaintiff produced no
evidence to raise a triable issue of fact sufficient to defeat the motion of CDC for summary
judgment. Accordingly, the plaintiff has neither demonstrated an excusable default nor a
meritorious cause of action and the order granting summary judgment should not be vacated.
WHEREFORE, your affirmant respectfully requests that this Court deny plaintiff's
application for relief and affirm the Court's order entered on June 27, 2017, dismissing the
complaint against CDC in itsentirety, on the merits and with prejudice, together with such other
and further relief as the Court may deem just and proper.
Dated: January 12, 2018
Gary H. A
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EXHIBIT A
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AM)
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At an I.A.S.TrialTerm, Part of the Supreme
Court of theState of New York, held inand forthe
County of Kings, at the Courthouse, located at
Civic Borough of Brooklyn, and State
Tw
Center, City
of New York, on the
M Vday of 20 ( "\
P R E S E N T :
Hon. *)
Justice
Cal. No.
yr dI )
t7
/
Plaintiff(s) Index No. f Cdt A O O
- against-
The following papers numbered 1 to read on this motion Papers Numbered
NoticeofMotion -Orderto Show Cause
Annexed
and Affidavits(Affirmations)
Answering Affidavit(Affirmation)
(Afikrrei=1
Reply Affidavit
Affidavit
(Affumation)
Pleadings-Exhibits
Stipulations-
Minutes
. Filed Papers
MD
Mot et .#
HON.EtAW D. RTlft
Justice of the Supreme Court
J.S.C.
EJV-rev 11-04
..
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EXHIBIT B
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-X
CLYDE OLIVER, Index No.: 504500/2015E
Plaintiff,
NOTICE OF MOTION
-against-
on. emades Bayne, J.S.C.
FRADEAU DES AMES POUR CHRIST COULANOE
FUSLER, CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
------ ---..--------.·-----------X
MOTION BY: ADAMS, HANSON & KAPLAN
Attorneys for Defendants
FRADEAU DES AMES POUR CHRIST
COULANGE FUSLER, CHRISTIAN
DISCIPLES OF CHRIST
One Executive Boulevard, Suite 280
Yonkers, New York 10701
((914) 233-1880
(914) 375-4168
Our File No.: 154101921-001-JAD
LOCATION: Supreme Court Kings County
360 Adams Street
Brooklyn, NY 11201
Motion Support Office Room 227
RETURN DATE: July 11, 2016 at 9:30 a.m.
RELIEF REQUESTED: a) An Order pursuant to CPLR 3212
dismissing this action on the merits due to
Defendant CHRISTIAN DISCIPLES OF
CHRIST non-involvement in the subject
accident.
b) An Order granting such other and
further reliefas this Court may deem justand
proper.
SUPPORTING PAPERS: ARirmation in Support of JEFFREY A.
DOMOTO, ESQ., and allpapers heretofore
had herein.
ANSWERING AFFIDAVITS: Answering Affidavits, ifany, areto be served
no less than seven (7) days prior tothe return
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date of this motion or any adjournments
thereof.
Dated: Yonkers, New York
June 9, 2016
By:
JEFFREY A. DOMOTO, ESQ.
ADAMS, HANSON & KAPLAN
Attorneys for Defendants
FRADEAU DES AMES POUR CHRIST
COULANGE FUSLER, CHRISTIAN
DISCIPLES OF CHRIST
One Executive Boulevard, Suite 280
Yonkers, New York 10701
((914) 233-1880
(914) 375-4168
Our File No.: 154101921-001-JAD
To:
JOSEPH MURE JR. & ASSOCIATES
Attorneys for Plaintiff
26 Court Street, Ste. 2601
Brooklyn, NY 11242
(718) 852-9100
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KlNGS
----- ------------------- X Index No.: 703758/2014
CLYDE OLIVER,
Plaintiff, AFFIRMATION IN SUPPORT
-against-
FRADEAU DES AMES POUR CHRIST COULANGE
FUSLER, CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
--m---n.w--------------------X
JEFFREY A. DOMOTO,ESQ., an âttaracy at law, duly admitted to practice before the
Courts of the State ofNew York, affinns, under penalty of perjury, the following:
1. I am an attorney associated with ADAMS, HANSON & KAPLAN, attorneys for
Def==d:=ts FRADEAU DES AMES POUR CHRIST, CO.ULANGE FUSLER, CHRISTIAN
DISCIPLES OF CHRIST and as sucham familiar with the facts and circes+æces herein based
upon the contents of the filemaintained in thisoffice.
2. I submit this Affirmation in Support of the instant motion for an Order dismissing
the Plaintiffs COñiplãint in its entirety as against Dcfcndâñt CHRISTIAN DISCIPLES OF
CHRIST.
3. As further discussed below, Defendant CHRISTIAN DISCIPLES OF CHRIST
was not operating a vehicle that was involved in any motor vehicle accident including, but not
limited to the claimed motor vehicle accident involving plaintiffCLYDE OLIVER.
Court' =Mhh
4. For the s convenience, the following will be relied upon in this
motion:
• Exhibit A: InitialPleadings
• Exhibit B: Police Accident Report
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• Exhibit C: Sworn affidavit of Dr. Sharon Watkins-General Minister and
Prcsidcñt of Defendant CHRISTIAN CHURCH a/k/a DISCIPLES OF
CHRIST; and
r Exhibit D: Deposition Transcript of Christophe Leger, Pastor of
Defendant FRADEAU DES AMES POUR CHRIST.
PROCEDURAL HISTORY
5. Plaintiff,CLYDE OLIVER, commenced thisaction by the filing and service of a
Süñññass and Complaint dated April 15, 2015. Defendants FRADEAU DES AMES POUR
CHRIST, COULANGE FUSLER and CHRISTIAN DISCIPLES OF CHRIST appeared in
thisaction by service of a Notice of Appcarance and Wrified Answer on or about May 13, 2015.
The above referenced pleadings are annexed hereto collectively as Exhibit "A".
6. Plaintiffin this matter has not filed the Note of Issue. In lightof the foregoing,
Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER and
CHRISTIAN DISCIPLES OF CHRIST's motion isbeing filed in a timely manner.
7. Plaintiff CLYDE OLIVER is clairñing personal injuriesresulting from a motor
vehicle accident which occurred on Jaüüary 11, 2015 on Ocean Avenue at ornear itsinterseation
with Tennis Court in the County of Kings, City and State of New York. This accident involves
PlaintiffCLYDE OLIVER, a pedestrian and a 2008 Ford Van owned by defendant FRADEAU
DES AMES POUR CHRIST and operated by defendant COULANGE FUSLER. See Exhibit
"B",
THE ALLEGATIONS
8. Lack ofliability on the part ofDcindâñt CHRISTIAN DISCIPLES OF CHRIST
is shown by sworn affidavit Dr. Sharon Watkins, General Miñistcr and President of Christian
Church a/k/a Christian Disciples of Christ. (Annexed hereto as Exhibit "C".) Said affidavit
specifically states:
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• At the time of the subject accident Defendant CHRISTIAN DISCIPLES OF
CHRIST was never in control of nor operated or maintained in any way the
vehicle involved in thesubject accident;
r At the time of the subjectaccident Defendant CHRISTIAN DISCIPLES OF
CHRIST was never inany way in charge of an employer of, nor in control of
the driver ofthe vehicle involved in the subject accident;
• Defendant CHRISTIAN DISCIPLES OF CHRIST did not direct, nor have
the power to direct any of Defendant FRADEAU DES AMES POUR
CHRIST's decisions regarding the hiring, managing, training or firingof any
FRADEAU DES AMES POUR CHRIST's employees, volunteers, members,
staff, drivers or vehicles;
Defendant CHRISTIAN DISCPILES OF CHRIST and Defendant
FRADEAO DES AMES POUR CHRIST are separate legal entities with
mplayces human resources staffs policies
and precedures; and
• There was no employer/employee relationship between Defendant
RISTIAN DISCIPLES OF CHRIST and Defendant FRADEAU DES
AMES POUR CHRIST, nor any employcc/cmployer relationship between
Defendant CHRISTIAN DISCPLES OF CHRIST and Defendant
COULANGE FUSLER; and
• Defendant CHRISTIAN DISCIPLES OF CHRIST never had control,
any
interest, nor ownership of the vehicle involved in the subject accident and
therefore could not have entrusted such vehicle to Defendant COULANGE
FUSLER.
See Exhibit "C". (Emphasis added.)
9. The lack of liability on the part of Defendañt CHRISTIAN DISCIPLES OF
CHRIST is further established by the sworn deposition of Defendant FRADEAU DES AMES
POUR CHRIST by Christophe Leger. (Exhibit "D")
Said testimony revealed:
• Christophe Leger isthe Pastor for Defendant FRADEAU DES AMES POUR
CHRIST;
• He founded Defendant FRADEAU DES AMES POUR CHRIST in 1983;
• Defendant FRADEAU DES AMES POUR CHRIST isin no way affiliated
with CHRISTIAN DISCIPLES OF CHRIST; and
• Defendant FRADEAU DES AMES POUR CHRIST is a separate
organization from CHRISTIAN DISCIPLES OF CHRIST.
"D" Page 10 page 11 lines
See Exhibit lines 11-25, 2-15, page 12 lines 2-25
and page 13 lines 2-17. (Emphasis added.)
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ARGUMENT
10. "To establish a prima facie case of negligence, a plaintiffmust dcñiòrstrate the
existence ofa duty owed by the defendant to theplaintiff, a breach ofthat duty, and thatthe breach
was a proximate cause of the plaintiffsinjury". (Demshick v. Community House, Mgt. Corp., 34
A.D.3d 5I8, 519, 824 N.Y.S.2d 166).
11. In our case, itis clear based upon the foregoing that at no time
Preview
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As such, 1 have personal knowledge of the matters stated herein. I make this affirmation in opposition to plaintiff's application for an order to show cause, filed with this Court on December 13, 2017. 2. This matter arises out of a motor vehicle accident which occurred on January 11, 2015, in Brooklyn, New York, involving a collision of a van with a pedestrian, plaintiff Clyde Oliver. It is undisputed that the van in question was owned by defendant Fradeau Des Ames Pour Christ ("Fradeau"), a Brooklyn church, and operated by defendant Coulange Fusler, a member ofthe Fradeau congregation. 3. CDC sought dismissal of plaintiff's action on the grounds that CDC had no control whatsoever over the van involved in the accident, and had no relationship with Fusler or anyone else connected with Fradeau which would justify imposition of vicarious liability for the accident. 14551658.1 1 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 NYSCEF [FILED DOC. : NO. KINGS 103 COUNTY CLERK 01/16 /2018 10 : 14 W RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 4. On June 27, 2017, this Court granted CDC's motion for summary judgment (sequence #2) upon plaintiff's failure to appear on the return date of that motion. See Order, "A." dated June 27, 2017, attached hereto as Exhibit 5. To have the default order vacated, plaintiff's counsel must provide evidence of an excusable default and a meritorious cause of action in their moving papers. In this case, plaintiff's counsel has shown neither and the relief which plaintiff seeks must be denied in all respects. 6. June 27, 2017 was not the first return date for this motion that plaintiff's counsel was obliged to diary. CDC first filed its motion to dismiss plaintiff's action more than a year "B." earlier, on June 6, 2016. See Notice of Motion, attached hereto as Exhibit 7. CDC's motion was firstreturnable on July 11, 2106. Itwas adjourned to October 26, 2016, adjourned again to January 17, 2017, adjourned again to January 31, 2017, adjourned again to April 25, 2017, and finally adjourned to June 27, 2017. See Appearance Detail printout "C." for this action, attached hereto as Exhibit The Court's docket sheet is readily and publicly available, and plaintiff's counsel has no valid excuse for failing to consult the docket sheet, particularly in view of the numerous prior adjournments. 8. Moreover, your affirmant was in regular communication by electronic mail with counsel for plaintiff, reminding plaintiff's counsel that the return date for CDC's motion for summary judgment was set for June 27, 2017. I sent e-mails to plaintiff's counsel on May 8, 2017, May 16, 2017, June 14, 2017, and June 15, 2017, alladdressed the upcoming return date. "D." See correspondence attached hereto as Exhibit Moreover, each of the emails in question - 2 - 14551658.1 2 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 W NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 FILED: KINGS COUNTY CLERK 0-1/16/2018 10:14 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 was addressed not but two attorneys at the same firm plaintiff - to, one, representing Jeremy Iandolo, Esq., and Anthony Varbero, Esq. Contrary to the protestations in plaintiff counsel's affirmation, there is no valid excuse for counsel's failure to properly calendar June 27 as the sixth and final return date for CDC's motion. 9. Contrary to Plaintiff counsel's claim in Paragraph 5 of his Affirmation, plaintiff's "days" application is not made within of the granting of the motion but rather almost six (6) months later. Plaintiff's counsel did file something on or about June 30, 2017 but never followed through with having the matter heard at that time. 10. Plaintiff's counsel sets forth nothing more than stating the case was supposedly miscalendared in their office but supplies no further information or detail as to what occurred. Notably, there are two counsel for plaintiff and neither showed up on the return date. 11. Without more, merely stating that the matter was calendared incorrectly does not suffice as an excusable default and thus plaintiff's application should be denied on that basis alone. (See Memo of Law submitted herewith) 12. Furthermore, as amply demonstrated by CDC's submissions and the exhibits thereto, most notably the depositions of Reverend Christophe Leger, Fradeau's pastor and founder, and Dr. Sharon E. Watkins of CDC, CDC has absolutely no connection to either the Fradeau van or its driver involved in the subject accident which would support imposition of liability on CDC in this case. See Reply Affirmation of Jeffrey A. Domoto, Esq., dated July 6, 2016, attached hereto as Exhibit "E"; Sur-Reply Affirmation of Gary H. Abelson, Esq., dated June 20, 2017, attached hereto as Exhibit "F"; and Sur-Reply Memorandum of Law, dated June - 3 - 14551658.1 3 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 FILED : KINGS COUNTY CLERK 01716/2018 10:14 m$ NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 "G" 20, 2017, attached hereto as Exhibit and incorporated herein as if fully set forth. (The full deposition transcripts of Reverend Christophe Leger and Dr. Sharon Watkins, referred to in these documents, are e-filed at documents 46 and 47 respectively). 13. This is simply an accident involving a van owned by Fradeau and operated by the defendant Fusler who was a member of the congregation. CDC had no ownership interest in any vehicle owned by Fradeau, and CDC had no control, maintenance, or operational abilities over the vehicle owned by Fradeau that was involved in the accident. Defendant Fusler, and for that matter Rev. Leger, were never employees of the CDC. 14. To establish negligence the plaintiff must demonstrate there was a duty owed to him by the defendant CDC. In the absence of such a duty there can be no breach and without a breach there can be no (see memorandum of law - Exhibit G). liability sur-reply 15. Defendant CDC clearly had no duty to the plaintiff with respect to the vehicle in question and therefore there can be no liability. 16. Further, plaintiff's counsel asserts that CDC should be held liable for the accident on the theory of negligent entrustment. 17. However, as set forth in defendant's Sur-Reply Memorandum of Law, negligent entrustment requires four elements, none of which apply in this case. 18. CDC did not entrust the vehicle owned by Fradeau to the driver, Fuster; they had no ownership interest in any vehicle owned by Fradeau and they had no control, maintenance or operational responsibilities over the vehicle that was involved in the accident. Thus there is no - 4 - 14551658.1 4 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 M NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 {FILED : KINGS COUNTY CLERK 01/16/2018 10 : 14 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 negligent entrustment cause of action and summary judgment should be granted on that claim. 19. Finally, there is a claim that CDC should be held responsible under a negligent hiring and/or respondeat superior theory, both of which do not apply. 20. As set forth in the Sur-Reply Memorandum of Law, the doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of employment. 21. In this case, the testimony is clear that Fusler was not an employee of CDC, nor was he an employee, for that matter, of Fradeau. Therefore respondeat superior fails as does any claim of any negligent hiring or negligent retention of an employee since Fusler was not an employee of Fradeau or CDC but just a member of the congregation. Leger Dep., 57:15-19. 22. In opposing CDC's motion for summary judgment, plaintiff produced no evidence to raise a triable issue of fact sufficient to defeat the motion of CDC for summary judgment. Accordingly, the plaintiff has neither demonstrated an excusable default nor a meritorious cause of action and the order granting summary judgment should not be vacated. WHEREFORE, your affirmant respectfully requests that this Court deny plaintiff's application for relief and affirm the Court's order entered on June 27, 2017, dismissing the complaint against CDC in itsentirety, on the merits and with prejudice, together with such other and further relief as the Court may deem just and proper. Dated: January 12, 2018 Gary H. A - 5 - 14551658.1 5 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 W NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 [FILED : KINGS COUNTY CLERK 01/16/2018 10 : 14 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 EXHIBIT A 6 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: 03/25/2019 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 NO. 504 500/2015 AM) NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 At an I.A.S.TrialTerm, Part of the Supreme Court of theState of New York, held inand forthe County of Kings, at the Courthouse, located at Civic Borough of Brooklyn, and State Tw Center, City of New York, on the M Vday of 20 ( "\ P R E S E N T : Hon. *) Justice Cal. No. yr dI ) t7 / Plaintiff(s) Index No. f Cdt A O O - against- The following papers numbered 1 to read on this motion Papers Numbered NoticeofMotion -Orderto Show Cause Annexed and Affidavits(Affirmations) Answering Affidavit(Affirmation) (Afikrrei=1 Reply Affidavit Affidavit (Affumation) Pleadings-Exhibits Stipulations- Minutes . Filed Papers MD Mot et .# HON.EtAW D. RTlft Justice of the Supreme Court J.S.C. EJV-rev 11-04 .. 7 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: 03/25/2019 10114 NO. 504500/2015 FILED : KINGS COUNTY CLERK 01/16/2018 AM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 EXHIBIT B 8 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 M NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 03/25/2019 FILED COUNTY CLERK INDEX NO. 504500/2015 : KINGS 01/16 /2018 10 : 14 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -X CLYDE OLIVER, Index No.: 504500/2015E Plaintiff, NOTICE OF MOTION -against- on. emades Bayne, J.S.C. FRADEAU DES AMES POUR CHRIST COULANOE FUSLER, CHRISTIAN DISCIPLES OF CHRIST, Defendants. ------ ---..--------.·-----------X MOTION BY: ADAMS, HANSON & KAPLAN Attorneys for Defendants FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST One Executive Boulevard, Suite 280 Yonkers, New York 10701 ((914) 233-1880 (914) 375-4168 Our File No.: 154101921-001-JAD LOCATION: Supreme Court Kings County 360 Adams Street Brooklyn, NY 11201 Motion Support Office Room 227 RETURN DATE: July 11, 2016 at 9:30 a.m. RELIEF REQUESTED: a) An Order pursuant to CPLR 3212 dismissing this action on the merits due to Defendant CHRISTIAN DISCIPLES OF CHRIST non-involvement in the subject accident. b) An Order granting such other and further reliefas this Court may deem justand proper. SUPPORTING PAPERS: ARirmation in Support of JEFFREY A. DOMOTO, ESQ., and allpapers heretofore had herein. ANSWERING AFFIDAVITS: Answering Affidavits, ifany, areto be served no less than seven (7) days prior tothe return 1 of 8 9 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 M NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 [FELED : KINGS COUNTY CLERK 01/16/2018 10 : 14 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 date of this motion or any adjournments thereof. Dated: Yonkers, New York June 9, 2016 By: JEFFREY A. DOMOTO, ESQ. ADAMS, HANSON & KAPLAN Attorneys for Defendants FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST One Executive Boulevard, Suite 280 Yonkers, New York 10701 ((914) 233-1880 (914) 375-4168 Our File No.: 154101921-001-JAD To: JOSEPH MURE JR. & ASSOCIATES Attorneys for Plaintiff 26 Court Street, Ste. 2601 Brooklyn, NY 11242 (718) 852-9100 2 of 8 10 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 M NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: 03/25/2019 504500/2015 10:14 NO. FILED : KINGS COUNTY CLERK 01/16/2018 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KlNGS ----- ------------------- X Index No.: 703758/2014 CLYDE OLIVER, Plaintiff, AFFIRMATION IN SUPPORT -against- FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST, Defendants. --m---n.w--------------------X JEFFREY A. DOMOTO,ESQ., an âttaracy at law, duly admitted to practice before the Courts of the State ofNew York, affinns, under penalty of perjury, the following: 1. I am an attorney associated with ADAMS, HANSON & KAPLAN, attorneys for Def==d:=ts FRADEAU DES AMES POUR CHRIST, CO.ULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST and as sucham familiar with the facts and circes+æces herein based upon the contents of the filemaintained in thisoffice. 2. I submit this Affirmation in Support of the instant motion for an Order dismissing the Plaintiffs COñiplãint in its entirety as against Dcfcndâñt CHRISTIAN DISCIPLES OF CHRIST. 3. As further discussed below, Defendant CHRISTIAN DISCIPLES OF CHRIST was not operating a vehicle that was involved in any motor vehicle accident including, but not limited to the claimed motor vehicle accident involving plaintiffCLYDE OLIVER. Court' =Mhh 4. For the s convenience, the following will be relied upon in this motion: • Exhibit A: InitialPleadings • Exhibit B: Police Accident Report 3 of 8 11 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 W NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 FILED : KINGS COUNTY CLERK 01/16/2018 10 : 14 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 • Exhibit C: Sworn affidavit of Dr. Sharon Watkins-General Minister and Prcsidcñt of Defendant CHRISTIAN CHURCH a/k/a DISCIPLES OF CHRIST; and r Exhibit D: Deposition Transcript of Christophe Leger, Pastor of Defendant FRADEAU DES AMES POUR CHRIST. PROCEDURAL HISTORY 5. Plaintiff,CLYDE OLIVER, commenced thisaction by the filing and service of a Süñññass and Complaint dated April 15, 2015. Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER and CHRISTIAN DISCIPLES OF CHRIST appeared in thisaction by service of a Notice of Appcarance and Wrified Answer on or about May 13, 2015. The above referenced pleadings are annexed hereto collectively as Exhibit "A". 6. Plaintiffin this matter has not filed the Note of Issue. In lightof the foregoing, Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER and CHRISTIAN DISCIPLES OF CHRIST's motion isbeing filed in a timely manner. 7. Plaintiff CLYDE OLIVER is clairñing personal injuriesresulting from a motor vehicle accident which occurred on Jaüüary 11, 2015 on Ocean Avenue at ornear itsinterseation with Tennis Court in the County of Kings, City and State of New York. This accident involves PlaintiffCLYDE OLIVER, a pedestrian and a 2008 Ford Van owned by defendant FRADEAU DES AMES POUR CHRIST and operated by defendant COULANGE FUSLER. See Exhibit "B", THE ALLEGATIONS 8. Lack ofliability on the part ofDcindâñt CHRISTIAN DISCIPLES OF CHRIST is shown by sworn affidavit Dr. Sharon Watkins, General Miñistcr and President of Christian Church a/k/a Christian Disciples of Christ. (Annexed hereto as Exhibit "C".) Said affidavit specifically states: 4 of 8 12 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 [FILED : KINGS COUNTY CLERK 01/16/2018 10 : 14 A14 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 • At the time of the subject accident Defendant CHRISTIAN DISCIPLES OF CHRIST was never in control of nor operated or maintained in any way the vehicle involved in thesubject accident; r At the time of the subjectaccident Defendant CHRISTIAN DISCIPLES OF CHRIST was never inany way in charge of an employer of, nor in control of the driver ofthe vehicle involved in the subject accident; • Defendant CHRISTIAN DISCIPLES OF CHRIST did not direct, nor have the power to direct any of Defendant FRADEAU DES AMES POUR CHRIST's decisions regarding the hiring, managing, training or firingof any FRADEAU DES AMES POUR CHRIST's employees, volunteers, members, staff, drivers or vehicles; Defendant CHRISTIAN DISCPILES OF CHRIST and Defendant FRADEAO DES AMES POUR CHRIST are separate legal entities with mplayces human resources staffs policies and precedures; and • There was no employer/employee relationship between Defendant RISTIAN DISCIPLES OF CHRIST and Defendant FRADEAU DES AMES POUR CHRIST, nor any employcc/cmployer relationship between Defendant CHRISTIAN DISCPLES OF CHRIST and Defendant COULANGE FUSLER; and • Defendant CHRISTIAN DISCIPLES OF CHRIST never had control, any interest, nor ownership of the vehicle involved in the subject accident and therefore could not have entrusted such vehicle to Defendant COULANGE FUSLER. See Exhibit "C". (Emphasis added.) 9. The lack of liability on the part of Defendañt CHRISTIAN DISCIPLES OF CHRIST is further established by the sworn deposition of Defendant FRADEAU DES AMES POUR CHRIST by Christophe Leger. (Exhibit "D") Said testimony revealed: • Christophe Leger isthe Pastor for Defendant FRADEAU DES AMES POUR CHRIST; • He founded Defendant FRADEAU DES AMES POUR CHRIST in 1983; • Defendant FRADEAU DES AMES POUR CHRIST isin no way affiliated with CHRISTIAN DISCIPLES OF CHRIST; and • Defendant FRADEAU DES AMES POUR CHRIST is a separate organization from CHRISTIAN DISCIPLES OF CHRIST. "D" Page 10 page 11 lines See Exhibit lines 11-25, 2-15, page 12 lines 2-25 and page 13 lines 2-17. (Emphasis added.) 5 of 8 13 of 50 FILED: KINGS COUNTY CLERK 03/25/2019 03:51 PM INDEX NO. 504500/2015 NYSCEF DOC. NO. 103 RECEIVEDINDEX NYSCEF: NO. 03/25/2019 504500/2015 FILED : KINGS COUNTY CLERK -01(1672018 10 : 14 AM NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 ARGUMENT 10. "To establish a prima facie case of negligence, a plaintiffmust dcñiòrstrate the existence ofa duty owed by the defendant to theplaintiff, a breach ofthat duty, and thatthe breach was a proximate cause of the plaintiffsinjury". (Demshick v. Community House, Mgt. Corp., 34 A.D.3d 5I8, 519, 824 N.Y.S.2d 166). 11. In our case, itis clear based upon the foregoing that at no time