Preview
FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------------------------------------------------------------------X Index No.:
ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as 611214/2015
Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015
deceased; OLGA LIPETS; MINDY GRABINA, as 603536/2016
Administratrix of the Estate of AMY GRABINA, and MINDY 600055/2016
GRABINA, Individually; STEVEN BARUCH, as 003364/2016
Administrator of the Estate of LAUREN BARUCH, deceased and 607598/2016
STEVEN BARUCH, Individually; JOELLE DIMONTE; 001831/2016
MELISSA A. CRAI; and ARTHUR A. BELLI JR, as parent and 614685/2016
Natural Guardian of STEPHANIE BELLI, deceased, and as the
Administrator of THE ESTATE OF STEPHANIE BELLI,
Plaintiffs, Honorable John H.
Rouse
- against – Return Date: 6/ /2022
ULTIMATE CLASS LIMOUSINE, INC., CARLOS
PINO, ROMEO DIMON MARINE SERVICE, INC.,
STEVEN ROMEO, TOWN OF SOUTHOLD and
COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC.
d/b/a ROYALE LIMOUSINE and “XYZ COMPANIES
1-5” name being fictitious but intended to be the
remanufacturers, distributors and/or sellers of the 2007
Lincoln Town Car stretch limousine involved in the collision,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT BY
DEFENDANT ROMEO DIMON MARINE SERVICE, INC.
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Dated: Farmingdale, New York
July 14, 2022
Yours, etc.,
_________________________
David Tavella, Esq.
CASCONE & KLUEPFEL, LLP
Attorneys for Defendant
ROMEO DIMON MARINE
SERVICE, INC. 1399 Franklin
Avenue, Suite 302
Garden City, New York 11530
(516) 747-1990
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David Tavella, an attorney duly admitted to practice law before the Courts of the
State of New York hereby affirms, under the penalties of perjury, as follows:
I am Of Counsel to the law firm of Cascone & Kluepfel, LLP, attorneys for the
defendants ROMEO DIMON MARINE SERVICE, INC., (hereinafter “MARINE”) and,
as such, I am fully familiar with the facts and circumstances contained herein. The
source of my knowledge is the file maintained by this office in the course of the defense
of this action.
This Memorandum of Law is submitted in support of Marine’s motion for an
Order, pursuant to CPLR §3212, dismissing all claims and cross-claims against Marine,
together with such other and further relief that this Court deems just and proper.
Preliminary Statement
This consolidated matter arises out of a motor vehicle accident which occurred on
July 18, 2015, on County Road 48 at Depot Lane, in the Town of Southold. It involved a
limousine driven by co-defendant, CARLOS PINO (hereinafter, “Pino”), which was
owned by co-defendant, ULTIMATE CLASS LIMOUSINE, INC., (hereinafter,
“Ultimate Class Limo”), and a vehicle owned and operated by Romeo. The plaintiffs
and/or the plaintiffs’ decedents were passengers in the limousine.
Plaintiffs seek to hold Marine liable based upon its alleged negligence in
ownership of the vehicle driven by Romeo at the time of the accident, or based upon the
allegation that the vehicle was being driven by Romeo in the course of his employment
with Marine.
Summary judgment should be granted to Marine dismissing the plaintiffs’
complaints any and all cross-claims asserted against it, as Marine was neither the
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owner of the red 2005 Dodge pickup truck driven by Romeo, nor was Romeo acting
within the scope of his employment at the time of the accident.
RELEVANT FACTUAL HISTORY
Romeo was employed as a mechanic by Marine, which is in the marine service
business, repairing boats and engines. Romeo does not have any current ownership
interest in the new company.
On July 18, 2015, Romeo was involved in a motor vehicle accident on Route 48
in Cutchogue at the intersection of Depot Lane. Romeo was the driver and owner of a red
2005 Dodge pickup truck that was involved in that accident.
On the day of the accident, Romeo had gone to work at Marine’s place of
business, but left work for his home before noon. Romeo remained at his home until
leaving later in the day for an engagement party at Dimon’s house.
None of Marine’s employees ever used Romeo’s 2005 Dodge pick-up truck.
Romeo paid for all expenses associated with his 2005 Dodge pickup truck.
On July 18, 2015, Dimon was employed as president and co-owner of Marine, a
mobile marine service, which provided maintenance, repaired boats and engines,
winterization, and boat storage. Romeo was its vice president and co-owner, and
performed mechanic work. Dimon bought-out Romeo’s half of the business after the
accident.
In July 2015, Marine owned two vans and two trucks: a black GMC truck; a tan
Mazda; a Sprinter van; and, a Ford van. Romeo owned the 2005 Dodge pickup truck that
he was driving at the time of the July 18, 2015 accident. It was his personal vehicle.
Marine never paid for or provided gas for Romeo’s 2005 Dodge pickup truck.
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Romeo was on his way to an engagement party when the accident happened—he
was not doing anything related to Marine’s business at the time of the accident.
According to the Certified New York State Vehicle Abstract of Title Record,
Romeo is the owner of the 2005 red Dodge pickup truck with NY license plate EFC3050,
Vin#1D7HW58N55S227605 that was involved in the accident. The 2005 Dodge pickup
truck with NY license plate EFC3050 was registered to Romeo.
ARGUMENT
Marine should be granted summary judgment dismissing all of the plaintiffs’
complaints and all the cross-claims asserted against it because Marine was neither the
owner of the vehicle which Romeo was driving at the time of the accident, nor was
Romeo acting within the scope of his employment.
As Marine did not own the vehicle, any negligence on Romeo’s part cannot be
imputed to it pursuant to Vehicle & Traffic Law §388. Nor can Marine be held
vicariously liable as Romeo was not acting within the scope of his employment with
Marine at the time of the accident.
The undisputed deposition testimony of both Romeo Dimon (on behalf of marine)
and documentary proof show that the 2005 Dodge pickup truck bearing NY license plate
EFC3050 that was involved in the accident on July 18, 2015, was owned by Romeo—and
not Marine.
The certified title record for the 2005 Dodge pickup truck involved in the accident
shows Romeo as the owner. The vehicle is also registered to him. A certificate of title
issued by New York State Department of Motor Vehicles is prima facie evidence of
ownership of that vehicle. See Squires v. Mumphery, 36 AD3d 607 (2d Dept. 2007);
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Aronov v. Bruins Transp., 294 AD2d 523 (2d Dept. 2002); Dorizas v. Island Insulation
Corp., 254 AD2d 246 (2d Dept. 1998), lv denied 93 NY2d 810 (1999).
Accordingly, this evidence establishes prima facie that Marine did not own the
vehicle that was involved in the accident. Rather, it was owned by Romeo.
In addition, both in his answers to plaintiffs’ complaints and during his
deposition, Romeo made admissions that he owned the vehicle.
Romeo’s admission of vehicle ownership in his answers constitutes a formal
judicial admission of that fact. See Zegarowicz v. Ripatti, 77 AD3d 650, 653 (2d Dept.
2010) (“Facts admitted by a party’s pleadings constitute formal judicial admissions.”
(Internal citations omitted).
Likewise, Romeo testified during his deposition that he was the owner of the 2005
Dodge pick-up truck that he was operating at the time of the accident, which admission of
ownership is also supported by Dimon’s (Marine’s) deposition testimony.
Therefore, Marine has established prima facie that it was not the owner of the
2005 Dodge pickup truck that was involved in the accident.
Romeo was alone in the pickup at the time of the accident. While there was a
notation on the EMS report indicating that a Melissa Canberg was in the pickup, that was
a mistake. Canberg was not in the pickup at the time of the accident.
Indeed, Canberg and Dimon did not even know each other. Canberg never did
business with Marine, and did not even own any type of watercraft.
Accordingly, Marine should be granted summary judgment dismissing the
complaints and the cross-claims insofar as against it.
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CONCLUSION
Summary judgment should be granted to Marine dismissing the complaints and the
cross-claims insofar as asserted against it in this consolidated action because it neither
owned the vehicle Romeo was driving at the time of the accident, nor was Romeo acting
within the scope of his employment at the time of the accident.
WHEREFORE, it is respectfully requested that the motion of defendant, ROMEO
DIMON MARINE SERVICE, INC., for an order pursuant to CPLR §3212 granting it
summary judgment dismissing the complaint of each plaintiff in this consolidated matter
and dismissing any and all claims and cross-claims insofar as asserted against it, be
granted in its entirety, and for such other and further relief as to this court deems just and
proper.
Dated: Farmingdale, N.Y.
July 14, 2022
Yours, etc.
David F. Tavella
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WORD COUNT CERTIFICATION
Pursuant to Uniform Rules §202.8-b, I hereby certify that this Memorandum of
Law complies with the word count limit of 7,000 words set forth therein. The total
number of words in this Memorandum of Law, exclusive of any captions, tables of
contents, tables of authorities and signature blocks, is 1,211, pursuant to the word count
in Microsoft Word, the word-processing system used the prepare the document.
Dated: Farmingdale, New York
July 14, 2022
_____________________________
David F. Tavella
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Preview
FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------------------------------------------------------------------X Index No.: ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as 611214/2015 Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015 deceased; OLGA LIPETS; MINDY GRABINA, as 603536/2016 Administratrix of the Estate of AMY GRABINA, and MINDY 600055/2016 GRABINA, Individually; STEVEN BARUCH, as 003364/2016 Administrator of the Estate of LAUREN BARUCH, deceased and 607598/2016 STEVEN BARUCH, Individually; JOELLE DIMONTE; 001831/2016 MELISSA A. CRAI; and ARTHUR A. BELLI JR, as parent and 614685/2016 Natural Guardian of STEPHANIE BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI, Plaintiffs, Honorable John H. Rouse - against – Return Date: 6/ /2022 ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD and COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC. d/b/a ROYALE LIMOUSINE and “XYZ COMPANIES 1-5” name being fictitious but intended to be the remanufacturers, distributors and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. -------------------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT BY DEFENDANT ROMEO DIMON MARINE SERVICE, INC. 1 1 of 8 FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 Dated: Farmingdale, New York July 14, 2022 Yours, etc., _________________________ David Tavella, Esq. CASCONE & KLUEPFEL, LLP Attorneys for Defendant ROMEO DIMON MARINE SERVICE, INC. 1399 Franklin Avenue, Suite 302 Garden City, New York 11530 (516) 747-1990 2 2 of 8 FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 David Tavella, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms, under the penalties of perjury, as follows: I am Of Counsel to the law firm of Cascone & Kluepfel, LLP, attorneys for the defendants ROMEO DIMON MARINE SERVICE, INC., (hereinafter “MARINE”) and, as such, I am fully familiar with the facts and circumstances contained herein. The source of my knowledge is the file maintained by this office in the course of the defense of this action. This Memorandum of Law is submitted in support of Marine’s motion for an Order, pursuant to CPLR §3212, dismissing all claims and cross-claims against Marine, together with such other and further relief that this Court deems just and proper. Preliminary Statement This consolidated matter arises out of a motor vehicle accident which occurred on July 18, 2015, on County Road 48 at Depot Lane, in the Town of Southold. It involved a limousine driven by co-defendant, CARLOS PINO (hereinafter, “Pino”), which was owned by co-defendant, ULTIMATE CLASS LIMOUSINE, INC., (hereinafter, “Ultimate Class Limo”), and a vehicle owned and operated by Romeo. The plaintiffs and/or the plaintiffs’ decedents were passengers in the limousine. Plaintiffs seek to hold Marine liable based upon its alleged negligence in ownership of the vehicle driven by Romeo at the time of the accident, or based upon the allegation that the vehicle was being driven by Romeo in the course of his employment with Marine. Summary judgment should be granted to Marine dismissing the plaintiffs’ complaints any and all cross-claims asserted against it, as Marine was neither the 3 3 of 8 FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 owner of the red 2005 Dodge pickup truck driven by Romeo, nor was Romeo acting within the scope of his employment at the time of the accident. RELEVANT FACTUAL HISTORY Romeo was employed as a mechanic by Marine, which is in the marine service business, repairing boats and engines. Romeo does not have any current ownership interest in the new company. On July 18, 2015, Romeo was involved in a motor vehicle accident on Route 48 in Cutchogue at the intersection of Depot Lane. Romeo was the driver and owner of a red 2005 Dodge pickup truck that was involved in that accident. On the day of the accident, Romeo had gone to work at Marine’s place of business, but left work for his home before noon. Romeo remained at his home until leaving later in the day for an engagement party at Dimon’s house. None of Marine’s employees ever used Romeo’s 2005 Dodge pick-up truck. Romeo paid for all expenses associated with his 2005 Dodge pickup truck. On July 18, 2015, Dimon was employed as president and co-owner of Marine, a mobile marine service, which provided maintenance, repaired boats and engines, winterization, and boat storage. Romeo was its vice president and co-owner, and performed mechanic work. Dimon bought-out Romeo’s half of the business after the accident. In July 2015, Marine owned two vans and two trucks: a black GMC truck; a tan Mazda; a Sprinter van; and, a Ford van. Romeo owned the 2005 Dodge pickup truck that he was driving at the time of the July 18, 2015 accident. It was his personal vehicle. Marine never paid for or provided gas for Romeo’s 2005 Dodge pickup truck. 4 4 of 8 FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 Romeo was on his way to an engagement party when the accident happened—he was not doing anything related to Marine’s business at the time of the accident. According to the Certified New York State Vehicle Abstract of Title Record, Romeo is the owner of the 2005 red Dodge pickup truck with NY license plate EFC3050, Vin#1D7HW58N55S227605 that was involved in the accident. The 2005 Dodge pickup truck with NY license plate EFC3050 was registered to Romeo. ARGUMENT Marine should be granted summary judgment dismissing all of the plaintiffs’ complaints and all the cross-claims asserted against it because Marine was neither the owner of the vehicle which Romeo was driving at the time of the accident, nor was Romeo acting within the scope of his employment. As Marine did not own the vehicle, any negligence on Romeo’s part cannot be imputed to it pursuant to Vehicle & Traffic Law §388. Nor can Marine be held vicariously liable as Romeo was not acting within the scope of his employment with Marine at the time of the accident. The undisputed deposition testimony of both Romeo Dimon (on behalf of marine) and documentary proof show that the 2005 Dodge pickup truck bearing NY license plate EFC3050 that was involved in the accident on July 18, 2015, was owned by Romeo—and not Marine. The certified title record for the 2005 Dodge pickup truck involved in the accident shows Romeo as the owner. The vehicle is also registered to him. A certificate of title issued by New York State Department of Motor Vehicles is prima facie evidence of ownership of that vehicle. See Squires v. Mumphery, 36 AD3d 607 (2d Dept. 2007); 5 5 of 8 FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 Aronov v. Bruins Transp., 294 AD2d 523 (2d Dept. 2002); Dorizas v. Island Insulation Corp., 254 AD2d 246 (2d Dept. 1998), lv denied 93 NY2d 810 (1999). Accordingly, this evidence establishes prima facie that Marine did not own the vehicle that was involved in the accident. Rather, it was owned by Romeo. In addition, both in his answers to plaintiffs’ complaints and during his deposition, Romeo made admissions that he owned the vehicle. Romeo’s admission of vehicle ownership in his answers constitutes a formal judicial admission of that fact. See Zegarowicz v. Ripatti, 77 AD3d 650, 653 (2d Dept. 2010) (“Facts admitted by a party’s pleadings constitute formal judicial admissions.” (Internal citations omitted). Likewise, Romeo testified during his deposition that he was the owner of the 2005 Dodge pick-up truck that he was operating at the time of the accident, which admission of ownership is also supported by Dimon’s (Marine’s) deposition testimony. Therefore, Marine has established prima facie that it was not the owner of the 2005 Dodge pickup truck that was involved in the accident. Romeo was alone in the pickup at the time of the accident. While there was a notation on the EMS report indicating that a Melissa Canberg was in the pickup, that was a mistake. Canberg was not in the pickup at the time of the accident. Indeed, Canberg and Dimon did not even know each other. Canberg never did business with Marine, and did not even own any type of watercraft. Accordingly, Marine should be granted summary judgment dismissing the complaints and the cross-claims insofar as against it. 6 6 of 8 FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 CONCLUSION Summary judgment should be granted to Marine dismissing the complaints and the cross-claims insofar as asserted against it in this consolidated action because it neither owned the vehicle Romeo was driving at the time of the accident, nor was Romeo acting within the scope of his employment at the time of the accident. WHEREFORE, it is respectfully requested that the motion of defendant, ROMEO DIMON MARINE SERVICE, INC., for an order pursuant to CPLR §3212 granting it summary judgment dismissing the complaint of each plaintiff in this consolidated matter and dismissing any and all claims and cross-claims insofar as asserted against it, be granted in its entirety, and for such other and further relief as to this court deems just and proper. Dated: Farmingdale, N.Y. July 14, 2022 Yours, etc. David F. Tavella 7 7 of 8 FILED: SUFFOLK COUNTY CLERK 07/14/2022 12:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 908 RECEIVED NYSCEF: 07/14/2022 WORD COUNT CERTIFICATION Pursuant to Uniform Rules §202.8-b, I hereby certify that this Memorandum of Law complies with the word count limit of 7,000 words set forth therein. The total number of words in this Memorandum of Law, exclusive of any captions, tables of contents, tables of authorities and signature blocks, is 1,211, pursuant to the word count in Microsoft Word, the word-processing system used the prepare the document. Dated: Farmingdale, New York July 14, 2022 _____________________________ David F. Tavella 8 8 of 8