Preview
FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
________________________________________________________________________Ç
JUSTIN DePROSPO, an infant by his mother and guardian
EILEEN SANTIAGO and EILEEN SANTIAGO, Index #: 350720/2009
individually, (Action # 1)
Plaintiffs,
AFFIRMATION IN
-against- OPPOSITION
MICHELLE NIXON-COCHRAN, GENERAL BAITOA
AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL
AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a GENERAL
BAITOA EQUIPMENT CO., HECTOR NUNEZ, d/b/a
GENERAL BAITOA AUTO PARTS, EDWARD TURNER,
450 CONCORD AVENUE CORP., d/b/a GENERAL
BAITOA, and CONCORD AVENUE, LLC,
Defendants.
___________________________-----______________________________Ç
JENNIFER SANTIAGO, as the Administratrix ofthe Index No. 301290/2010
Estate of RICHARD SANTIAGO, and EILEEN (Action # 2)
SANTIAGO HADDOCK, Individually and as Parent and
Natural Guardian for Minor Children, JEREMIAH RICHARD
SANTIAGO and MATTHEW RICHARD SANTIAGO,
Plaintiffs,
-against-
MICHELLE NIXON-COCHRAN, GENERAL BAITOA
AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL
AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a
GENERAL BAITOA AUTO EQUIPMENT CO., HECTOR
NUNEZ D/B/A GENERAL BAITOA AUTO PARTS,
Defendants.
______-_________________----_________________________________-_____X
LAWRENCE CHAIFETZ, an attorney duly licensed to practice law in the StateofNew York,
subscribing and affirming as true,under penalties of perjury, statesas follows:
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1. I am a member of the law firm of CHAIFETZ & CHAIFETZ LLC, the attorney
for JENNIFER SANTIAGO, as the Administratrix ofthe Estate of RICHARD SANTIAGO, and
EILEEN SANTIAGO HADDOCK, individually and as parent and natural guardian for minor
children, JEREMIAH RICHARD SANTIAGO and MATTHEW RICHARD SANTIAGO
(collectively, "SANTIAGO PLAINTIFFS").
2. I am fully familiar with all of the facts herein, the source of my knowledge being
the records maintained by this office in the course of the within action.
3. This Affirmation is submitted (a) in opposition to the motion of GENERAL
BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT,
INC., and 450 CONCORD AVENUE CORP. d/b/a GENERAL BAITOA (hereinafter referred
to collectively as "BAITOA") for leave to reargue the motion for summary judgment, decided by
this Court by Order dated July 5, 2022, under CPLR §2221(d), and (b) in opposition to the
plaintiffs'
motion by BAITOA for summary judgment under CPLR §3212 dismissing complaint
and all cross-complaints against BAITOA.
4. All exhibits which have been submitted by the defendants in support of their
motions are incorporated by reference herein.
PRELIMINARY STATEMENT
5. This action arises out of a collision which occurred on August 7, 2009 in the
westbound lane of Bruckner Boulevard in the Bronx between a motorcycle driven by RICHARD
SANTIAGO, and NIXON-COCHRAN's double parked vehicle.
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6. At the time of the collision, NIXON-COCHRAN was delivering auto parts for
BAITOA to a customer of BAITOA's located on Bruckner Boulevard and was sitting inside her
double parked vehicle.
7. RICHARD SANTIAGO's son, JUSTIN DEPROSPO, was a passenger on the
motorcycle.
8. RICHARD SANTIAGO did not survive the collision. JUSTIN DEPROSPO
suffered serious injuries.
9. The SANTIAGO PLAINTIFFS commenced this action to recover damages
arising from RICHARD SANTIAGO's pain, suffering and death, and from the loss of
companionship, society and services experienced by the members of RICHARD SANTIAGO'S
- his EILEEN and his JEREMIAH RICHARD SANTIAGO
family wife, SANTIAGO, children,
and MATTHEW RICHARD SANTIAGO.
10. This Court, by Order dated July 5, 2022, denied BAITOA's motion for summary
judgment and co-defendant NIXON-COCHRAN's cross motion for summary judgment on
distinct grounds as untimely. NIXON-COCHRAN has not filed a motion for leave to reargue or
notice of appeal from such Order.
1 1. BAITOA's original motion for summary judgment, served on December 7, 2021,
was filed without a return date and an amended notice of motion was filed on December 21,
2021, beyond the 60 day period from October 8, 2021, when the case was restored to the Trial
Calendar by the filing of a Notice of Issue.
12. In its Order of July 5, 2022, the Court stated, "Nonetheless, this action, filed over
a decade should be tried". This Court considered the evidence submitted the co-
ago, by
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defendants and rendered a decision based on such evidence. BAITOA has no basis to reargue
judgment.1
the motion for summary
12. There are material issues of fact which preclude summary judgment in thisaction.
The evidence in the record raises significant factual issues whether BAITOA's input into the
method and manner in which NIXON-COCHRAN performed her job rendered her an employee,
as opposed to an independent contractor, at the time of the accident.
COUNTER STATEMENT OF RELEVANT FACTS
13. On August 7, 2009 a motorcycle driven by RICHARD SANTIAGO collided with
NIXON-COCHRAN's vehicle in the westbound lane of Bruckner Boulevard in the Bronx.
(Police Report, NYSCEF Doc. No. 28).
14. NIXON-COCHRAN was double parked at the time of the accident. (NIXON-
COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 58:15-19, 80: 5-21, Police Report,
NYSCEF Doc. No. 28).
15. NIXON-COCHRAN was in her car making a delivery for her employer,
BAITOA, at the time of the accident. (NIXON-COCHRAN Deposition Transcript, NYSCEF
Doc. No. 24, 22:20-23:17).
16. NIXON-COCHRAN had been working for BAITOA for four or five months at
the time of the accident as a driver making deliveries of parts to various auto mechanic shops and
dealers. (NIXON-COCHRAN Deposition NYSCEF Doc. No. 12:20-
Transcript, 24, 11:18-21,
25).
1 Itis hardnot the in BAITOA's argument infavor of
to note irony hearing the summary judgment motion on the
merits,where thegranting of such motion would preclude the entireactionfrom being considered on the merits.
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17. On the day of the accident, NIXON-COCHRAN's boss gave her specific
instructions to deliver the parts to a gentleman who would be waiting outside, and the gentleman
waved her down as she approached. (NIXON-COCHRAN Deposition Transcript, NYSCEF
Doc. No. 24, 22:20-23:17).
18. NIXON-COCHRAN received medical and indemnity workers compensation
benefits under a policy held by BAITOA for itsemployees in connection with the accident.
(Affidavit of Senior Claims Specialist of Utica National Insurance Group, NYSCEF Doc. No.
40).
19. NIXON-COCHRAN worked on a fixed schedule set by BAITOA, and she was
expected to work eight hours a six days a through Saturday. (NIXON-
day, week, Monday
COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-13, 18: 17-25, 133:6-21).
20. NIXON-COCHRAN's work schedule and the schedules of the other drivers was
set by BAITOA. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:9-12).
21. BAITOA told the drivers they must report to work at 8:30 A.M. and the workday
ended after they had made their last delivery for the day which would usually be between 4:30
and 5:00 P.M. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-12).
22. NIXON-COCHRAN and about fifteen other employees would report to work
every day between 8:15 A.M. and 8:20 A.M and sitin a room waiting to get their delivery
assignments. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 18: 17-25, 12:
9-13).
days'
23. NIXON-COCHRAN had to give at least one to two notice ifshe wanted to
take a day ofE (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 133:6-10).
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24. NIXON-COCHRAN received some direction the order of deliveries -
regarding
BAITOA told drivers to make deliveries closest to BAITOA's offices first. (NIXON-
COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 131:14-20).
25. NIXON-COCHRAN received specific instructions from BAITOA as to how to
make the delivery at issue. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24,
22:20 - 23:16).
26. All the BAITOA employees, including NIXON-COCHRAN, used their own
vehicles to make the deliveries. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc.
No. 24, 14: 2-10).
27. NIXON-COCHRAN was paid on a weekly basis each Friday either in cash or by
a check bearing the company's name and did not receive a W-2. (NIXON-COCHRAN
Deposition Transcript, NYSCEF Doc. No. 24, 16: 7-11; 84: 6-22).
28. NIXON-COCHRAN entered into an Operator Agreement with BAITOA as a
condition of employment. (NYSCEF Doc. No. 27).
ARGUMENT
29. Defendant BAITOA has not tendered sufficient evidence to conclusively
demonstrate the absence of material facts and has not met the heavy burden of justifying
summary judgment as a matter of law. It iswell settled that summary judgment is a drastic
remedy that should be employed only when there is no doubt as to the absence of triable issues
(Aguilar v City of New York, 162 AD3d 601, 601 [1st Dept 2018]). "[T]he proponent of a
summary judgment motion must make a prima facie showing of entitlement to judgment as a
matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of
fact"
(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].
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30. There are triable issues of fact as to whether NIXON-COCHRAN was an
independent contractor or employee at the time of the accident: NIXON-COCHRAN received
medical and indemnity workers compensation benefits under a policy held by BAITOA for its
employees in connection with the accident, she worked a daily and weekly schedule set by
"boss"
BAITOA, and she received specific instructions from her regarding the delivery which is
the center of this action
31. In the interests of judicial economy, we affirm and will not restate the arguments
set forth in the affirmations in opposition made by counsel for JUSTIN DEPROSPO and
EILEEN SANTIAGO, and by counsel for EDWARD TURNER.
32. The motion for summary judgment relies on evidence that is inadmissible. The
deposition transcripts have not been signed by the deponents and no evidence has been submitted
that the deponents have been given an opportunity to review them.
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CONCLUSION
itis submitted that the defendant BAITOA's motion to
WHEREFORE, respectfully
for judgment should be denied in thdir entirety.
reargue and motion summary
Dated: New York, New York
August 2022 wrenc aife Esq.
26,
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WORD COUNT VERIFICATION
Pursuant to Uniform Rule §202-8b, I hereby certify that Santiago Plaintiff's affirmation in
opposition dated August 26, 2022 complies with the word count limit. The total number of
words in this affirmation, exclusive of any captions, tables of contents, table of authorities and
signature blocks is 1,637 pursuant to the word count in Microsoft Word, the word processing
system used to prepare this document.
Dated: New York. New York
August 26, 2022
LÆWRE HAIFETZ
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Preview
FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ________________________________________________________________________Ç JUSTIN DePROSPO, an infant by his mother and guardian EILEEN SANTIAGO and EILEEN SANTIAGO, Index #: 350720/2009 individually, (Action # 1) Plaintiffs, AFFIRMATION IN -against- OPPOSITION MICHELLE NIXON-COCHRAN, GENERAL BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a GENERAL BAITOA EQUIPMENT CO., HECTOR NUNEZ, d/b/a GENERAL BAITOA AUTO PARTS, EDWARD TURNER, 450 CONCORD AVENUE CORP., d/b/a GENERAL BAITOA, and CONCORD AVENUE, LLC, Defendants. ___________________________-----______________________________Ç JENNIFER SANTIAGO, as the Administratrix ofthe Index No. 301290/2010 Estate of RICHARD SANTIAGO, and EILEEN (Action # 2) SANTIAGO HADDOCK, Individually and as Parent and Natural Guardian for Minor Children, JEREMIAH RICHARD SANTIAGO and MATTHEW RICHARD SANTIAGO, Plaintiffs, -against- MICHELLE NIXON-COCHRAN, GENERAL BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT INC., HECTOR NUNEZ, d/b/a GENERAL BAITOA AUTO EQUIPMENT CO., HECTOR NUNEZ D/B/A GENERAL BAITOA AUTO PARTS, Defendants. ______-_________________----_________________________________-_____X LAWRENCE CHAIFETZ, an attorney duly licensed to practice law in the StateofNew York, subscribing and affirming as true,under penalties of perjury, statesas follows: 1 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 1. I am a member of the law firm of CHAIFETZ & CHAIFETZ LLC, the attorney for JENNIFER SANTIAGO, as the Administratrix ofthe Estate of RICHARD SANTIAGO, and EILEEN SANTIAGO HADDOCK, individually and as parent and natural guardian for minor children, JEREMIAH RICHARD SANTIAGO and MATTHEW RICHARD SANTIAGO (collectively, "SANTIAGO PLAINTIFFS"). 2. I am fully familiar with all of the facts herein, the source of my knowledge being the records maintained by this office in the course of the within action. 3. This Affirmation is submitted (a) in opposition to the motion of GENERAL BAITOA AUTOMOTIVE WAREHOUSE, INC., BAITOA GENERAL AUTO EQUIPMENT, INC., and 450 CONCORD AVENUE CORP. d/b/a GENERAL BAITOA (hereinafter referred to collectively as "BAITOA") for leave to reargue the motion for summary judgment, decided by this Court by Order dated July 5, 2022, under CPLR §2221(d), and (b) in opposition to the plaintiffs' motion by BAITOA for summary judgment under CPLR §3212 dismissing complaint and all cross-complaints against BAITOA. 4. All exhibits which have been submitted by the defendants in support of their motions are incorporated by reference herein. PRELIMINARY STATEMENT 5. This action arises out of a collision which occurred on August 7, 2009 in the westbound lane of Bruckner Boulevard in the Bronx between a motorcycle driven by RICHARD SANTIAGO, and NIXON-COCHRAN's double parked vehicle. 2 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 6. At the time of the collision, NIXON-COCHRAN was delivering auto parts for BAITOA to a customer of BAITOA's located on Bruckner Boulevard and was sitting inside her double parked vehicle. 7. RICHARD SANTIAGO's son, JUSTIN DEPROSPO, was a passenger on the motorcycle. 8. RICHARD SANTIAGO did not survive the collision. JUSTIN DEPROSPO suffered serious injuries. 9. The SANTIAGO PLAINTIFFS commenced this action to recover damages arising from RICHARD SANTIAGO's pain, suffering and death, and from the loss of companionship, society and services experienced by the members of RICHARD SANTIAGO'S - his EILEEN and his JEREMIAH RICHARD SANTIAGO family wife, SANTIAGO, children, and MATTHEW RICHARD SANTIAGO. 10. This Court, by Order dated July 5, 2022, denied BAITOA's motion for summary judgment and co-defendant NIXON-COCHRAN's cross motion for summary judgment on distinct grounds as untimely. NIXON-COCHRAN has not filed a motion for leave to reargue or notice of appeal from such Order. 1 1. BAITOA's original motion for summary judgment, served on December 7, 2021, was filed without a return date and an amended notice of motion was filed on December 21, 2021, beyond the 60 day period from October 8, 2021, when the case was restored to the Trial Calendar by the filing of a Notice of Issue. 12. In its Order of July 5, 2022, the Court stated, "Nonetheless, this action, filed over a decade should be tried". This Court considered the evidence submitted the co- ago, by 3 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 defendants and rendered a decision based on such evidence. BAITOA has no basis to reargue judgment.1 the motion for summary 12. There are material issues of fact which preclude summary judgment in thisaction. The evidence in the record raises significant factual issues whether BAITOA's input into the method and manner in which NIXON-COCHRAN performed her job rendered her an employee, as opposed to an independent contractor, at the time of the accident. COUNTER STATEMENT OF RELEVANT FACTS 13. On August 7, 2009 a motorcycle driven by RICHARD SANTIAGO collided with NIXON-COCHRAN's vehicle in the westbound lane of Bruckner Boulevard in the Bronx. (Police Report, NYSCEF Doc. No. 28). 14. NIXON-COCHRAN was double parked at the time of the accident. (NIXON- COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 58:15-19, 80: 5-21, Police Report, NYSCEF Doc. No. 28). 15. NIXON-COCHRAN was in her car making a delivery for her employer, BAITOA, at the time of the accident. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 22:20-23:17). 16. NIXON-COCHRAN had been working for BAITOA for four or five months at the time of the accident as a driver making deliveries of parts to various auto mechanic shops and dealers. (NIXON-COCHRAN Deposition NYSCEF Doc. No. 12:20- Transcript, 24, 11:18-21, 25). 1 Itis hardnot the in BAITOA's argument infavor of to note irony hearing the summary judgment motion on the merits,where thegranting of such motion would preclude the entireactionfrom being considered on the merits. 4 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 17. On the day of the accident, NIXON-COCHRAN's boss gave her specific instructions to deliver the parts to a gentleman who would be waiting outside, and the gentleman waved her down as she approached. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 22:20-23:17). 18. NIXON-COCHRAN received medical and indemnity workers compensation benefits under a policy held by BAITOA for itsemployees in connection with the accident. (Affidavit of Senior Claims Specialist of Utica National Insurance Group, NYSCEF Doc. No. 40). 19. NIXON-COCHRAN worked on a fixed schedule set by BAITOA, and she was expected to work eight hours a six days a through Saturday. (NIXON- day, week, Monday COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-13, 18: 17-25, 133:6-21). 20. NIXON-COCHRAN's work schedule and the schedules of the other drivers was set by BAITOA. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:9-12). 21. BAITOA told the drivers they must report to work at 8:30 A.M. and the workday ended after they had made their last delivery for the day which would usually be between 4:30 and 5:00 P.M. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 12:5-12). 22. NIXON-COCHRAN and about fifteen other employees would report to work every day between 8:15 A.M. and 8:20 A.M and sitin a room waiting to get their delivery assignments. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 18: 17-25, 12: 9-13). days' 23. NIXON-COCHRAN had to give at least one to two notice ifshe wanted to take a day ofE (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 133:6-10). 5 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 24. NIXON-COCHRAN received some direction the order of deliveries - regarding BAITOA told drivers to make deliveries closest to BAITOA's offices first. (NIXON- COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 131:14-20). 25. NIXON-COCHRAN received specific instructions from BAITOA as to how to make the delivery at issue. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 22:20 - 23:16). 26. All the BAITOA employees, including NIXON-COCHRAN, used their own vehicles to make the deliveries. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 14: 2-10). 27. NIXON-COCHRAN was paid on a weekly basis each Friday either in cash or by a check bearing the company's name and did not receive a W-2. (NIXON-COCHRAN Deposition Transcript, NYSCEF Doc. No. 24, 16: 7-11; 84: 6-22). 28. NIXON-COCHRAN entered into an Operator Agreement with BAITOA as a condition of employment. (NYSCEF Doc. No. 27). ARGUMENT 29. Defendant BAITOA has not tendered sufficient evidence to conclusively demonstrate the absence of material facts and has not met the heavy burden of justifying summary judgment as a matter of law. It iswell settled that summary judgment is a drastic remedy that should be employed only when there is no doubt as to the absence of triable issues (Aguilar v City of New York, 162 AD3d 601, 601 [1st Dept 2018]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]. 6 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 30. There are triable issues of fact as to whether NIXON-COCHRAN was an independent contractor or employee at the time of the accident: NIXON-COCHRAN received medical and indemnity workers compensation benefits under a policy held by BAITOA for its employees in connection with the accident, she worked a daily and weekly schedule set by "boss" BAITOA, and she received specific instructions from her regarding the delivery which is the center of this action 31. In the interests of judicial economy, we affirm and will not restate the arguments set forth in the affirmations in opposition made by counsel for JUSTIN DEPROSPO and EILEEN SANTIAGO, and by counsel for EDWARD TURNER. 32. The motion for summary judgment relies on evidence that is inadmissible. The deposition transcripts have not been signed by the deponents and no evidence has been submitted that the deponents have been given an opportunity to review them. 7 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 CONCLUSION itis submitted that the defendant BAITOA's motion to WHEREFORE, respectfully for judgment should be denied in thdir entirety. reargue and motion summary Dated: New York, New York August 2022 wrenc aife Esq. 26, 8 of 9 FILED: BRONX COUNTY CLERK 08/26/2022 05:13 PM INDEX NO. 350720/2009E NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 08/26/2022 WORD COUNT VERIFICATION Pursuant to Uniform Rule §202-8b, I hereby certify that Santiago Plaintiff's affirmation in opposition dated August 26, 2022 complies with the word count limit. The total number of words in this affirmation, exclusive of any captions, tables of contents, table of authorities and signature blocks is 1,637 pursuant to the word count in Microsoft Word, the word processing system used to prepare this document. Dated: New York. New York August 26, 2022 LÆWRE HAIFETZ 9 of 9