Motion for Child Support in Cleodell Milagro Lopez-Morales by the Guardian of her Person and Property, AGNES MORALES v. Opengate, Inc., Redora Diane Brown, Peppinos Food, Inc., Jeffrey M. Leete| Trellis.Law

On September 03, 2021 a Motion-Secondary was filed involving a dispute between Cleodell Milagro Lopez-Morales By The Guardian Of Her Person And Property, Agnes Morales, and Jeffrey M. Leete, Opengate, Inc., Peppinos Food, Inc., Redora Diane Brown, for Torts - Motor Vehicle in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 06/08/2022 01:07 PM INDEX NO. 62165/2021
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 06/08/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
CLEODELL MILAGRO LOPEZ-MORALES,
by the Guardian of her Person and Property,
AGNES MORALES, INDEX #: 62165/2021

Plaintiff(s). AFFIRMATION IN SUPPORT OF
PLAINTIFF’S MOTION
-against-

OPENGATE, INC., REDORA DIANE BROWN,
PEPPINO’S FOOD, INC. and JEFFREY M.
LEETE,

Defendant(s).

MARSHALL ADAM NEIMARK, an attorney admitted to practice in the State of New York, upon
information and belief, affirms the following under the penalties of perjury:
1. That I am a member of Neimark Coffinas & Lapp LLP, the attorneys of record for the

plaintiff, and as such am thoroughly conversant with the facts and circumstances herein based upon the

contents of the file maintained by this office.

2. I make this affirmation in support of this motion:

(1) For an order pursuant to Section 3212 of the Civil Practice Law and Rules granting summary

judgment in favor of plaintiff and against the defendants OPENGATE, INC. and REDORA

DIANE BROWN, for the relief demanded in the complaint;

(2) For an order pursuant to Section 3211(b) of the Civil Practice Law and Rules dismissing the

defendants Ninth Affirmative Defense of OPENGATE, INC. and REDORA DIANE BROWN

which states: “That the Answering Defendants were faced with an “emergency situation” not

of their own making, and acted reasonably under the circumstances then and there existing”;

and

(3) For such other and further relief as to this Court may seem just and proper.

3. On September 3, 2021, a Summons and Complaint was filed in this action. On or about

April 26, 2022, defendants OPENGATE, INC. and REDORA DIANE BROWN interposed an Answer.

On or about June 6, 2022, defendants PEPPINO’S FOOD, INC. and JEFFREY M. LEETE interposed an

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Answer. See Summons and Complaint and Answers annexed hereto as Exhibits “A”, “B” and “C”,

respectively.

4. Issue having been joined, the instant motion for partial summary judgment is now

appropriate based on the doctrine of Res Judicata and Collateral Estoppel. A prior lawsuit arising out of

the same car crash was commenced by a plaintiff named Donna Caputo. Ms. Caputo was a passenger in

the same vehicle as CLEODELL MILAGRO LOPEZ-MORALES, the injured plaintiff in this action. Ms.

Caputo filed her lawsuit in Westchester County, and it was assigned to the Honorable Justice Gerald E.

Loehr. Justice Loehr in a decision dated December 19, 2018, held the following: “Based on the evidence,

the Court determines the motion as follows: as Brown made a left turn in front of the on-coming vehicle

owned by Penske and being driven by Leete, without yielding the right of way, Brown was negligent and

Leete was not…. As plaintiff was a passenger in the Brown vehicle, she was not negligent. As the Brown

vehicle was owned by Act Leasing, which is in the business of leasing vehicles and leased it to Brown’s

employer [Opengate, Inc.] …” Annexed hereto as Exhibit “D” is a copy of Justice Loehr’s Decision.

5. It is clear from the above decision that the Court found defendant REDORA DIANE

BROWN negligent for the happening of this car crash and no negligence on behalf of defendant JEFFREY

M. LEETE. The case was dismissed against defendant JEFFREY M. LEETE. Despite the finding of

negligence on behalf of defendant REDORA DIANE BROWN, the Court dismissed the complaint against

her based on a worker’s compensation defense since Donna Caputo was employed by OPENGATE, INC.

and was in the course of her employment when the car crash occurred. It should be noted that CLEODELL

MILAGRO LOPEZ-MORALES was not an employee of OPENGATE, INC. but rather a patient being

transported for the purposes of medical treatment.

6. On July 7, 2021, the Appellate Division Second Department in Caputo v. Redora Brown,

et al., 196 A.D. 3d 458, 150 N.Y.S. 3d 733, modified Honorable Justice Loehr’s decision as follows: “the

Supreme Court should not have, in effect, searched the record and awarded summary judgment dismissing

the complaint insofar as asserted against Leete and Penske, since the evidence adduced failed to establish

as a matter of law that Leete was free from negligence contributing to the accident … (see Barron v.

Brown, 101 AD 3d 915 [2012]). We reinstate the cross claims of Leete and Penske against Brown. In the

event that Leete or Penske is liable to the plaintiff, and the plaintiff suffered a grave injury, those

defendants could recovery against Brown on their cross claims (see Workers’ Compensation Law §11;
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Castillo v. 711 Group, Inc., 10 NY3d 735 ([2008]). Annexed hereto as Exhibit “E” is a copy of the Caputo

Appellate Division, Second Department Decision.

7. The Appellate Division did not disturb Honorable Justice Loehr’s finding of negligence on

behalf of defendant REDORA DIANE BROWN and, through vicarious liability, her employer Opengate,

Inc. The Court of Appeals in its decision in Hassan v. Montouri, 786 NE2d 25, [Ct. of Appeals 2003] held:

Vehicle and Traffic Law § 388 provides:

"Every owner of a vehicle used or operated in this state shall be liable and responsible for
death or injuries to person or property resulting from negligence in the use or operation of
such vehicle, in the business of such owner or otherwise, by any person using or operating
the same with the permission, express or implied, of such owner."

Under Vehicle and Traffic Law § 128, the applicable definition of "owner" includes "any
lessee or bailee of a motor vehicle or vessel having the exclusive use thereof, under a lease
or otherwise, for a period greater than thirty days."

Vehicle and Traffic Law § 388 was enacted to "ensure access by injured persons to `a
financially responsible [party] against whom to recover for injuries'" and "to change th[e]
common-law rule and to impose liability upon the owner of a vehicle `for the negligence
of a person legally operating the car with the permission, express or implied, of the owner'
* * *" (Morris v Snappy Car Rental, 84 NY2d 21, 27 [1994] [citation omitted]).

8. As set forth in the Plaintiff’s Statement of Material Facts the defendants OPENGATE,

INC. and REDORA DIANE BROWN admit in their answer the following (Exhibit “B”):

a. Defendant REDORA DIANE BROWN was, and still is an employee of Defendant

OPENGATE, INC.

b. Defendant REDORA DIANE BROWN acted in the scope of and in furtherance of

her employment with Defendant OPENGATE, INC.

c. On January 9, 2018, Defendant REDORA DIANE BROWN operated a Honda

motor vehicle bearing New York registration number HNG5450.

d. On January 9, 2018, Defendant REDORA DIANE BROWN operated the Honda

motor vehicle bearing New York registration number HNG5450 with the knowledge of Defendant

OPENGATE, INC.
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e. On January 9, 2018, Defendant REDORA DIANE BROWN operated the Honda

motor vehicle bearing New York registration number HNG5450 with the permission of Defendant

OPENGATE, INC.

f. On January 9, 2018, Defendant REDORA DIANE BROWN operated the Honda

motor vehicle bearing New York registration number HNG5450 with the consent of Defendant

OPENGATE, INC.

Based on the admissions set forth above and the law in New York State, it is uncontroverted that
defendant OPENGATE, INC. is vicariously liable for the negligence of its employee defendant REDORA

DIANE BROWN.

9. It is also without question that the plaintiff CLEODELL MILAGRO LOPEZ-MORALES

was not negligent.

10. As for the affirmative defense of “emergency” it must be dismissed since Justice Loehr

already determined that the defendant REDORA DIANE BROWN was negligent in causing this car crash

and there was no evidence of an emergency situation that was raised.

11. “[R]es Judicata, or claim preclusion, bars successive litigation based upon the same

transaction or series of connected transactions if: (i) there is judgment on the merits rendered by a court

of competent jurisdiction and (ii) the party against whom the doctrine is invoked was a party to the

previous action, or, in privity with a party who was (“Matter of People v. Applied Card Sys., Inc., 11

NY3d 104, 1122 [internal quotation marks and citation omitted]). Albanez v. Hans Charles, et al., 2015

NY Slip Op 08795, [2nd Dept. 2015]. The Court in Albanez, held that since an order was entered against

the Appellants in a prior matter: “That order is conclusive for res judicata purposes as to any matters

actually litigated or that might have been litigated in that action, and precludes the appellants from

maintaining this action (see Perkins v Allstate Ins. Co., 51 AD3d 647, 648; Matter of Eagle Ins. Co. v

Facey, 272 AD2d at 400). Accordingly, the Supreme Court properly granted that branch of Barnych’s

cross motion which was for summary judgment dismissing the complaint insofar as asserted against him,

and denied, as academic, the appellants’ motion to restore the action to the trial calendar.” See Id.

12. “It is hereby ordered that the order so appealed from is unanimously affirmed without

costs…. Supreme Court determined that plaintiff is collaterally estopped from establishing that such an
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injury was causally related to the subject motor vehicle accident because of a no-fault arbitration award

that determined otherwise. We reject plaintiff's contention that collateral estoppel should not apply

because he was not afforded a full and fair opportunity to litigate that issue in the arbitration proceeding.

Under the doctrine of collateral estoppel, or issue preclusion, a party may not "relitigat[e] in a subsequent

action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party

or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel.

Co., 62 NY2d 494, 500 [1984]). Collateral estoppel applies only if "(1) the issue sought to be precluded

is identical to a material issue necessarily decided by the [prior tribunal] in a prior proceeding; and (2)

there was a full and fair opportunity to contest the issue in [that] tribunal" (Jeffreys v Griffin, 1 NY3d 34,

39 [2003]; see Ryan, 62 NY2d at 500-501). In determining whether a party was given a full and fair

opportunity 1946*1946 to litigate the issue in a prior proceeding, the court should consider "`the nature

of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate

and the actual extent of litigation, the competence and expertise of counsel, the availability of new

evidence, the difference in the applicable law and the foreseeability of future litigation'" (Clemens v

Apple, 65 NY2d 746, 748 [1985], quoting Ryan, 62 NY2d at 501). The doctrine of collateral estoppel may

be invoked based upon an arbitration award (see Matter of American Ins. Co. [Messinger — Aetna Cas.

& Sur. Co.], 43 NY2d 184, 189-190 [1977]; see generally Rembrandt Indus. v Hodges Intl., 38 NY2d

502, 504 [1976]), including the arbitration of a no-fault claim (see Clemens, 65 NY2d at 748-749; Barnett

v Ives, 265 AD2d 865, 866 [1999]).” Rozewski v. Trautmann, 151 A.D.3d 1945, 57 N.Y.S.3d 852, [4th

Dept. 2017].
13. Looking at this matter, it is clear that based on both Res Judicata and Collateral Estoppel,

defendant REDORA DIANE BROWN and, by vicarious liability, defendant OPENGATE, INC. are

negligent and responsible for the car crash which caused plaintiff CLEODELL MILAGRO LOPEZ-

MORALES’ injuries. Defendant JEFFREY M. LEETE and PEPPINO’S FOOD., INC., while not

determined to be negligent as a matter of law are both still valid parties that can be proven to be negligent

for the cause of this car crash as well.

14. The elements of Res Judicata were met in that there was a judgment on the merits which

was rendered by a court of competent jurisdiction and the party to whom the doctrine is being invoked

was a party to the previous action, or, in privity with a party who was. The Court rendering the decision
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on the Merits was clearly one of competent jurisdiction being that it was the Supreme Court Westchester

County and issued by the Honorable Justice Gerald E. Loehr. Further, the decision was then appealed and

the Appellate Division, Second Department modified the decision as set forth above without disturbing

the finding of liability against defendant REDORA DIANE BROWN. Defendant REDORA DIANE

BROWN was a party to the prior action and was found to be negligent for this car crash. She was employed

by OPENGATE, INC. which was not a defendant in the previous action but is one in this action. Clearly,

OPENGATE, INC. was in privity with REDORA DIANE BROWN and, via vicarious liability as her

employer, was also negligent as a matter of law for this car crash. The same can be said for JEFFREY M.

LEETE. He was a party to the prior action and was employed by PEPPINO’S FOOD, INC. PEPPINO’S

FOOD, INC. was not a defendant in the previous action, but is one in this action. Clearly, PEPPINO’S

FOOD, INC. was in privity with JEFFREY M. LEETE and, via vicarious liability as his employer, may

also be found to be negligent as a matter of law for this car crash. See Hassan, supra.

15. The elements of Collateral Estoppel were also met in that the issue of liability is identical

to the material issue necessarily decided by Justice Loehr and the defendants had a full and fair opportunity

to contest the issue decided by Justice Loehr as modified by the Appellate Division, Second Department.

The happening and cause of this car crash have already been litigated and decided on by not only one

Supreme Court Judge, but also by the Appellate Division, Second Department. The defendants REDORA

DIANE BROWN and JEFFREY M. LEETE were represented by the same law firms that represent them

in this case1. It is without question, that the defendants, through their attorneys, had a full and fair

opportunity to litigate the issue of negligence in this car crash.
16. As a matter of law, it has been determined that defendant REDORA DIANE BROWN and,

through vicarious liability, defendant OPENGATE, INC., are negligent for the happening of this car crash.

It has also been determined that defendant, JEFFREY M. LEETE and through vicarious liability,

defendant PEPPINO’S FOOD, INC. might also be negligent for the happening of this car crash.

1
Redora Diane Brown. is represented in this action by Schwab Gasparini, PLLC and is also represented in Caputo v. Redora
Brown, et al. by Schwab Gasparini, PLLC.
Jeffrey M. Leete is represented in this action by Milber Makris Plousadis & Seiden, LLP and is also represented in Caputo v.
Redora Brown, et al. by Milber Makris Plousadis & Seiden, LLP.

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17. Based on the foregoing and in the interest of justice as well as judicial economy the issue

of liability has already been determined finding, as a matter of law, REDORA DIANE BROWN and

through vicarious liability, defendant OPENGATE, INC. responsible for the happening of this car crash

as a result of their negligence. As for defendant JEFFREY M. LEETE and PEPPINO’S FOOD, INC., a

finding of negligence could be found against them and, therefore, they are valid defendants in this case.

18. Annexed hereto as Exhibit “F” are copies of the cited case law.

19. No previous application has been made for the relief sought herein.

Dated: New City, New York
June 8, 2022

CERTIFICATION:

I hereby certify that all of the papers that I have served, filed or submitted to the court in this action are
not frivolous as defined in subsection (c) of Section 130-1.1 of the Rules of the Chief Administrator of
the Courts.

Yours, etc.

__________________________________________
MARSHALL ADAM NEIMARK
NEIMARK COFFINAS & LAPP LLP
Attorneys for Plaintiff
37 Congers Road
New City, New York 10956
(845)638-3012
Our File No. 18010

TO:

Catriona A. Robbins, Esq.
Schwab Gasparini, PLLC
Attorney for Defendant(s)
Opengate, Inc.
1441 Route 22, Suite 206
Brewster, NY 10509
(914) 304-4353

Michele D. Newsome, Esq.
Milber Makris Plousadis & Seiden, LLP
Attorney for Defendant(s)
Jeffrey M. Leete
Peppino's Food, Inc.
100 Manhattanville Road, Suite 4E20
Purchase, NY 10577
(516) 712-4000
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
CLEODELL MILAGRO LOPEZ-MORALES,
by the Guardian of her Person and Property,
AGNES MORALES, INDEX #: 62165/2021
Certification Pursuant
Plaintiff(s). to 22 NYCRR § 202.8-b

-against-
OPENGATE, INC., REDORA DIANE BROWN,
PEPPINO’S FOOD, INC. and JEFFREY M.
LEETE,
Defendant(s).

The undersigned hereby certifies that the foregoing document complies with the word

count limit set-forth in 22 NYCRR § 202.8-b. The total number of words in said document,

exclusive of any caption, table of contents, table of authorities, and signature block, as calculated

by Microsoft Word, the word-processing system used to prepare the document, is 2522.

Dated: New City, New York
June 8, 2022

Yours, etc.

MARSHALL ADAM NEIMARK
NEIMARK COFFINAS & LAPP LLP
Attorneys for Plaintiffs
37 Congers Road
New City, New York 10956
(845)638-3012

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Case Info

Judge

David F Everett Track Judge’s New Case

Case No.

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Document Filed Date

June 08, 2022

Case Filing Date

September 03, 2021

County

Parties

CAMPBELL, JAY SUNG Attorney for the Defendant
Cleodell Milagro Lopez-morales by the Guardian of her Person and Property, AGNES MORALES Plaintiff
GASPARINI, LOUIS U Attorney for the Defendant
Jeffrey M. Leete Defendant
LAPP, IRA HARLEY Attorney for the Plaintiff
NEIMARK, MARSHALL ADAM Attorney for the Plaintiff
NEWSOME, MICHELE DIANE Attorney for the Defendant
OPENGATE, INC. Defendant
PEPPINOS FOOD, INC. Defendant
Redora Diane Brown Defendant
ROBBINS, CAITRIONA ASHLEY Attorney for the Defendant
STEVEN CRAMER Attorney
ALEX NOCERINO Attorney
MICHELE NEWSOME Attorney
ELLEN LAZARUS Attorneys for Plaintiffs
DANIEL PELLEGRIN Attorneys for Plaintiffs

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Motion-Secondary: Cleodell Milagro Lopez-Morales by the Guardian of her Person and Property, AGNES MORALES v. Opengate, Inc., Redora Diane Brown, Peppinos Food, Inc., Jeffrey M. Leete

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Parties