Preview
FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
______________--______________________________-----___________________Ç
BAJRAM DOMBALIC and SAMUEL GARCIA,
Plaintiff, AFFIRMATION IN
OPPOSITION
Index No: 151145/2021
-against-
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendants.
__________________---_______________________..______________________...x
CAROLYN M. CANZONERI, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following under the penalties of perjury:
1. I am an associate with the law office of DECOLATOR, COHEN & DIPRISCO, LLP,
attorneys for Plaintiffs BAJRAM DOMBALIC and SAMUEL GARCIA, and as such, I am fully
familiar with the facts and circumstances surrounding this case.
2. I make this Affirmation in Opposition to the Defendant's Motion for an Order granting
summary judgment to defendant YEVGENI KANIAYEV's and for such other and further relief
as this Court may deem just and proper.
3. Defendant Yevdeni Kaniayev's motion should be denied in its entirety for the following
five reasons (a)the motion is premature as no discovery has been held (b) negligence cases do not
usually lend themselves to summary judgment;( c ) the complaint report shows that the vehicle
was reported stolen after the date of incident on June 12, 2020, one day after the incident (*as
noted on the report, itstates that itwas reported 6/12/2020 11:50) ( d ) pursuant to New
York State Vehicle and Traffic Law Section 388, there is rebuttable presumption that a vehicle
owner consented to the operation of her vehicle by another party once a plaintiff meets the
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threshold requirement of proving a defendants's ownership of a vehicle and ( e ) even a certified
police report is not admissible where statements are from unknown sources as they are hearsay as
here, itis unknown if the statements were pursuant to conversations with the driver or some other
source and there is no statement that the police officer witnessed the accident.
DEFENDANT'S MOTION IS PREMATURE AND SHOULD BE DENIED
4. A motion for summary judgment is premature as a matter of law where the depositions of
the parties, particularly the movant, and/or other substantial discovery necessary to oppose said
motion, have not been completed or are outstanding. See Yerushalmi & Associates, LLP v.
(2"d
Westland Overseas Corp. 21 A.D. 3d 1098, 2005 WL2385215*1 Dept, 2005) Summary
judgment was premature where defendant's motion was made before discovery was complete
and many essential issues of fact in the case are within the knowledge of individuals who had not
yet been deposed. See, Plaza Invs.v. Kim, 208 A.D. 2d 704, 617 N.Y.S. 2d 496 The Supreme
Court properly denied the motion for summary judgment as premature because certain relevant
discovery remained outstanding. Donato v. Elrac, Inc., 18 A.D. 3d 696, 795 N.Y.S. 2d 348, 349
(2"d
Dept, 2005) Plaintiff requested a Preliminary Conference on October 31, 2022 for discovery
"A"
and no date was scheduled yet. See annexed hereto as Exhibit is the Preliminary
Conference Request.
5. The Appellate Division confirmed that a summary judgment motion
was premature prior to the deposition. Figueroa v. The City of New York, 126 AD 3d 438
(2015) Itwas noted that a motion for summary judgment should be denied as premature where
the movant has yet to be deposed. See, 241 Fifth Ave.Hotel LLC v.GSY Corp., 110 AD 3d 470,
*
472, 973 N.Y.S.2d 129 (1 Dept, 2013); Brooks v. Somerset Surgical Assoc., 106 A.D.3d 624,
(1"
624-625, 966 N.Y.S.2d 65 Dept, 2013) (although Dr. Sohn submitted an affidavit stating that
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he was not present at the moment of plaintiff's fall (from the operating table) his motion for
summary judgment was properly denied as premature, because essential facts concerning the
cause of plaintiff's accident and the relationship between Dr. Sohn (and another doctor
defendant) are exclusively within the possession of defendants and might well be disclosed by
ebt or through cross examination. (Cannon v. New York City Police Dept, 104 AD 3d 454, 454,
(1"
960 NYS 2d 308 Dept, 2013) It was premature to consider defendants
cross motion for summary judgment before plaintiff deposed defendants. Those examination
might have led to additional information and discovery none of which plaintiff had been able to
obtain or compel prior to the court's decision on the cross motion. For these same reasons,
Defendant Yevgeni Kaniayev's motion should be denied in its entirety as we are entitled to the
Court Ordered deposition as he is the movant, we should be entitled to cross examine the witness
including about his self serving affidavit and obtain the discovery including the date on which the
vehicle was stolen, when itwas reported stolen, the relationship if at allbetween James Cornelius
and defendant Yevgeni Kaniayev or his family and how James Cornelius about the keys or access
to the vehicle. None has been able to be explored as Plaintiff requested a Preliminary Conference
but none was scheduled yet.
(15
6. In Effron v. Cohen, 106 AD 3d 560 Dept, 2013), the Appellate Division held that the
motion for partial summary judgment was properly denied as premature in light of the
incomplete state of discovery including the lack of any depositions. See Wilson v. Yemen Realty
(1"
Corp., 74 A.D. 3d 544, 903 N.Y.S. 2d 42 Dept, 2010); McGlynn v. Palace, Co, 262 AD 2d
(1"
116, 691 N.Y.S. 2d 514 Dept, 1999) See also, McGlynn v. Palace Company, 262 AD 2d 116
(N.Y.App.Div, 1999), the Court held that itwas error to grant summary judgment prior to
affording defendants an opportunity to depose the plaintiff. See also, Darling v.Solomon, 227
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A.D. 2d 851; Gaughan v. Chase Manhattan Bank, 204 A.D. 2d 67. There, the Court noted that
plaintiff's motion should have been denied, albeit without prejudice to renewal after completion
of discovery proceedings. For the same reasons, summary judgment should be denied as no
discovery has been held.
NEGLIGENCE CASES DO NOT USUALLY LEND THEMSELVES TO SUMMARY JUDGMENT
7. Ithas been well established that summary judgment is a drastic remedy and should not be
granted where there is any doubt as to the existence of a triable issue. Vega v. Restani
Const.Corp,18 N.Y.3d 499, 503 (2012); Sternbach v. Cornell Univ., 162 AD 2d 922, 923 (3d
Dept, 1990) In deciding a motion for summary judgment, the trial court must view all evidence in
the light most favorable to the party against whom such judgment is sought and where there is
any doubt as to the existence of a triable issue of fact, itshould deny the motion since the goal is
issue finding rather than issue determination. Swartout v. Consolidated Rail Corp., 294 AD 2d
785, 786 (3d Dept, 2002); see also, Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 (2011);
Greco v.Boyce, 262 AD2d 734, 734 (3d Dept, 1999) (holding courts are to view the evidence in
light most favorable to the nonmoving party, affording that party the benefit of all reasonable
inferences and to ascertain whether a material, triable issue of fact exists.
8. The Court of Appeals has stated that negligence cases by their very nature do not usually
lend themselves to summary judgment, since often, even if allparties are in agreement as to the
underlying facts, the very question of negligence is itself a question for jury determination.
Ugarriza v. Schmieder, 46 N.Y.2d 471, 474. Only if itcan be concluded as a matter of law that
defendant was negligent, may summary judgment be granted in a negligence action.Id.
9. It isequally well settled by the Court of Appeals that the proponent of a summary
judgment motion must make a prima facie showing of entitlement to judgment as a matter of
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sufficient evidence to demonstrate the absence of any material issues of fact.
law, tendering
Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); see also Winegrad v. New York
Univ.Med.Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 NY 2d 557 (1980);
accord Hollis v. Charlew Const.Co., Inc., 302 AD 2d 700 (3d Dept, 2003)
10. To establish a prima facie entitlement to judgment as a matter of law, a moving party
must present proof in admissible form to demonstrate the absence of any triable issues of fact as
to each and every allegation in the complaint and bill of particulars. See Alvarez, 68 NY 2d at
320; Hollis, 302 AD 2d at 700. Such burden may not be met by pointing to gaps in plaintiff's
proof. DiBartolomeo v. St.Peter's Hosp.of City of Albany, 73 A.D.3d 1326 (3d Dept, 2010);
accord Dow v. Schenectady County Dept.of Social Servs., 46 AD 3d 1084, 1084 (3d Dept, 2007)
The failure of the moving papers to eliminate all material issues of fact requires the denial of the
motion for summary judgment. See Alvarez, 68 N.Y.2d at 324; Winegrad, 64 N.Y.2d at 853. If
the movant fails to make prima facie showing the motion for summary judgment must be denied
even ifthe non-movant's papers are considered insufficient. See Winegrad, 64 N.Y.2d at853; see
also, Wilson v. Proctor's Theater & Arts Ctr., 223 AD 2d 826 (3d Dept, 1996)
11. Based on the summary judgment standard, this motion must be denied as not only is it
premature, but there are questions of fact as to when the vehicle was reported stolen and Yevgeni
Kaniayev's liability for permissive use as the owner of the vehicle.
DEFENDANT'S EVIDENCE FAILS TO WARRANT SUMMARY JUDGMENT IN THIS CASE
12. Defendant Yevgeni Kaniayev submits the uncertified police complaint report which is not
proper evidence to determine a motion for summary judgment. See Defendant's Exhibit "B";
CPLR Section 4518; see Memenza v. Cole, 131 AD 3d 1020, 1021. Further, despite the
inadmissibility, the complaint creates an issue of fact that the vehicle was not reported until after
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the motor vehicle accident on June 12, 2020 under the second section under reported states:
2020-06-12. Defendant has not submitted a certified Complaint nor has anyone testified as to the
meaning and determination of said Complaint.
VEHICLE AND TRAFFIC LAW SECTION 388 ESTABLISHES A REBUTTABLE
PRESUMPTION THAT A VEHICLE OWNER CONSENTED TO THE OPERATION OF THE
VEHICLE
13. Vehicle and Traffic Law Section 388 establishes a rebuttable presumption that a vehicle
owner consented to the operation of her vehicle by another party once a plaintiff meets the
threshold requirement of proving a defendant's ownership of a vehicle. As an owner is
vicariously liable for the acts of a permitted driver, the owner's fault is not an issue. Reyes v.
Chee Trucking 20 Misc 3d 1109 ( a ) (N.Y.Sup.Ct. June 27, 2008) There has been no depositions
held of Yevgeni Kaniayev, only a self serving statement to say that she didn't give permission to
James Cornelius, which is a self serving statement. Plaintiff is entitled to cross examine the
defendant. Credibility cannot be determined on a motion for summary judgment. Chimbo v.
(2nd
Bolivar, 2016 NY Slip Op 05969 Dept, 2016) Plaintiff should also have the opportunity to
conduct the deposition of driver James Cornelius by subpoena. As such, Summary Judgment
should respectfully be denied.
14. Vehicle and Traf)ìc Law Section 388 prevents vehicle owners from disclaiming liability
simply by a self serving claim that a vehicle was being used without their permission. E Further,
VTLSection 388 encourages owners to be judicious with whom they give authority to use their
vehicle. K If owners select better and more responsible drivers then, theoretically fewer
accidents will occur. Idd_ Similarly here, Yevgeni Kaniayev's self serving claim cannot suffice
for summary judgment, especially where the motion is premature.
15.In Bernard v. Mumuni, 6 N.Y. 3d 881 (2006), the owner of a minivan had recently sold his
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car but was going out of town before the exchange could be made. He leftitwith his friend to
complete the deal. The friend's son who was recently home from college, saw the keys to the car
on the table and assumed that itwas the car that his father had mentioned he was going to buy for
his son. Id. The son, who was not a licensed driver, got into an accident while driving the
minivan and plaintiff tried to impose liability on the owner defendant via Vehicle and Traffic
Law Section 388.
16.The Court found that the question of consent belonged to the jury as the owner's friend
claimed that the defendant never said not to operate the vehicle. Bernard, supra. As such, the
court found that a reasonable jury could infer that implied consent could extend to any person
who drove the minivan. Since the owner put the chain of events in motion, he could be found
liable for the resulting accident even though his friend's son did not have a driver's license. The
lack of a driver's license does not negate statutory liability. Id. Herein, the issue of consent is
one for a jury to decide and no discovery has proceeded which places Plaintiff in an unfair
position to oppose this motion.
(2nd
17. In Cherry v. Tucker, 5 AD 3d 433 Dept), a security guard was involved in a car accident.
The defendant-owner presented evidence that the guards were not allowed to drive the vehicles,
that the guard was the last one to drive the car and that the owner filed a missing vehicle report
12 days after the car was last seen. The Court still did not consider this substantial evidence to
rebut the presumption that the car was driven with the owner's consent and the question went to
the jury. The court so held without offering further explanation as to why the evidence was
insubstantial. Here, similarly, the uncertified Complaint shows that the vehicle was not reported
stolen until after the accident on June 12, 2020. Regardless, the issue of consent is one for a jury.
(1"
18. In Matter of Eagle Ins.v.Lucia, 33 AD 3d 552 Dept, 2006), the case shows that there are
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questions for a jury to decide where the issue of consent has already been presumptively rebutted
by the defendant. There, the daughter was given permission to use the mother's car. However,
the mother testified that she had given her daughter permission to use the car only to go to a play
at her school and specifically no one else could drive it. Id The daughter testified that she knew
no one else could use the car and only gave the keys to a friend to retrieve some books from the
car. The friend, allowed her boyfriend to drive causing the accident. Id Under these facts, the
mother would be liable under Vehicle and Traffic Law Section 388 if she had given her daughter
unrestricted use of the car, but not the restricted use she testified to have given. Because the
mother's testimony could be viewed as self serving, the court gave the question of consent to the
jury. The court allowed the jury to determine ifthe mother's testimony was credible whereas
testimony without such self interest would normally serve to rebut the presumption of consent.
ISSUES OF CREDIBILITY CANNOT BE DECIDED ON A MOTION FOR SUMMARY
JUDGMENT
19. Further, the Plaintiff has had no opportunity to question Yevgeni Kaniayev as to whether the
keys were left in the vehicle and credibility cannot be determined on this motion for summary
judgment. New York State Vehicle and Traffic Law Section 1210 (a )
20. Additionally, even with a certified police report, unknown sources contained therein may not
be admitted for their truth. Noakes v. Rosa, 54 AD 3d 317 , 318. Therefore, the police accident
report is not admissible even despite the certification as the hearsay statements cannot be used to
prove the truth of the matters asserted.
CONCLUSION
21. As Defendant failed to make a prima facie showing, their motion for summary judgment
must be denied as the Complaint report is uncertified; the report shows the vehicle was reported a
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day after the motor vehicle accident on June 12, 2020, and the police report itselfcontains
hearsay statements with no known source as to where the information was derived. Further, there
is a rebuttable presumption that the owner Yevgeni Kaniayev gave permission to the driver
James Cornelius to operate said vehicle. Lastly, there has been no discovery to date and itplaces
Plaintiff in an unfair, prejudicial position to oppose this Summary Judgement without full
opportunity to question and cross examine Defendant Yevgeni Kaniayev including about their
self serving statements in the Affidavit.
22. For these reasons, Defendant Yevgeni Kaniayev's Motion for Summary Judgment must be
denied in its entirety.
WHEREFORE, itis respectfully submitted that Defendant Yevgeni Kaniayev's Motion
for Summary Judgment be denied in itsentirety together with such other and further relief as the
Court deems just and proper.
DATED: GARDEN CITY, NEW YORK
January 13, 2022
. RI ESQ.
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Preview
FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ______________--______________________________-----___________________Ç BAJRAM DOMBALIC and SAMUEL GARCIA, Plaintiff, AFFIRMATION IN OPPOSITION Index No: 151145/2021 -against- JAMES CORNELIUS and YEVGENI KANIAYEV, Defendants. __________________---_______________________..______________________...x CAROLYN M. CANZONERI, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am an associate with the law office of DECOLATOR, COHEN & DIPRISCO, LLP, attorneys for Plaintiffs BAJRAM DOMBALIC and SAMUEL GARCIA, and as such, I am fully familiar with the facts and circumstances surrounding this case. 2. I make this Affirmation in Opposition to the Defendant's Motion for an Order granting summary judgment to defendant YEVGENI KANIAYEV's and for such other and further relief as this Court may deem just and proper. 3. Defendant Yevdeni Kaniayev's motion should be denied in its entirety for the following five reasons (a)the motion is premature as no discovery has been held (b) negligence cases do not usually lend themselves to summary judgment;( c ) the complaint report shows that the vehicle was reported stolen after the date of incident on June 12, 2020, one day after the incident (*as noted on the report, itstates that itwas reported 6/12/2020 11:50) ( d ) pursuant to New York State Vehicle and Traffic Law Section 388, there is rebuttable presumption that a vehicle owner consented to the operation of her vehicle by another party once a plaintiff meets the 1 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 threshold requirement of proving a defendants's ownership of a vehicle and ( e ) even a certified police report is not admissible where statements are from unknown sources as they are hearsay as here, itis unknown if the statements were pursuant to conversations with the driver or some other source and there is no statement that the police officer witnessed the accident. DEFENDANT'S MOTION IS PREMATURE AND SHOULD BE DENIED 4. A motion for summary judgment is premature as a matter of law where the depositions of the parties, particularly the movant, and/or other substantial discovery necessary to oppose said motion, have not been completed or are outstanding. See Yerushalmi & Associates, LLP v. (2"d Westland Overseas Corp. 21 A.D. 3d 1098, 2005 WL2385215*1 Dept, 2005) Summary judgment was premature where defendant's motion was made before discovery was complete and many essential issues of fact in the case are within the knowledge of individuals who had not yet been deposed. See, Plaza Invs.v. Kim, 208 A.D. 2d 704, 617 N.Y.S. 2d 496 The Supreme Court properly denied the motion for summary judgment as premature because certain relevant discovery remained outstanding. Donato v. Elrac, Inc., 18 A.D. 3d 696, 795 N.Y.S. 2d 348, 349 (2"d Dept, 2005) Plaintiff requested a Preliminary Conference on October 31, 2022 for discovery "A" and no date was scheduled yet. See annexed hereto as Exhibit is the Preliminary Conference Request. 5. The Appellate Division confirmed that a summary judgment motion was premature prior to the deposition. Figueroa v. The City of New York, 126 AD 3d 438 (2015) Itwas noted that a motion for summary judgment should be denied as premature where the movant has yet to be deposed. See, 241 Fifth Ave.Hotel LLC v.GSY Corp., 110 AD 3d 470, * 472, 973 N.Y.S.2d 129 (1 Dept, 2013); Brooks v. Somerset Surgical Assoc., 106 A.D.3d 624, (1" 624-625, 966 N.Y.S.2d 65 Dept, 2013) (although Dr. Sohn submitted an affidavit stating that 2 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 he was not present at the moment of plaintiff's fall (from the operating table) his motion for summary judgment was properly denied as premature, because essential facts concerning the cause of plaintiff's accident and the relationship between Dr. Sohn (and another doctor defendant) are exclusively within the possession of defendants and might well be disclosed by ebt or through cross examination. (Cannon v. New York City Police Dept, 104 AD 3d 454, 454, (1" 960 NYS 2d 308 Dept, 2013) It was premature to consider defendants cross motion for summary judgment before plaintiff deposed defendants. Those examination might have led to additional information and discovery none of which plaintiff had been able to obtain or compel prior to the court's decision on the cross motion. For these same reasons, Defendant Yevgeni Kaniayev's motion should be denied in its entirety as we are entitled to the Court Ordered deposition as he is the movant, we should be entitled to cross examine the witness including about his self serving affidavit and obtain the discovery including the date on which the vehicle was stolen, when itwas reported stolen, the relationship if at allbetween James Cornelius and defendant Yevgeni Kaniayev or his family and how James Cornelius about the keys or access to the vehicle. None has been able to be explored as Plaintiff requested a Preliminary Conference but none was scheduled yet. (15 6. In Effron v. Cohen, 106 AD 3d 560 Dept, 2013), the Appellate Division held that the motion for partial summary judgment was properly denied as premature in light of the incomplete state of discovery including the lack of any depositions. See Wilson v. Yemen Realty (1" Corp., 74 A.D. 3d 544, 903 N.Y.S. 2d 42 Dept, 2010); McGlynn v. Palace, Co, 262 AD 2d (1" 116, 691 N.Y.S. 2d 514 Dept, 1999) See also, McGlynn v. Palace Company, 262 AD 2d 116 (N.Y.App.Div, 1999), the Court held that itwas error to grant summary judgment prior to affording defendants an opportunity to depose the plaintiff. See also, Darling v.Solomon, 227 3 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 A.D. 2d 851; Gaughan v. Chase Manhattan Bank, 204 A.D. 2d 67. There, the Court noted that plaintiff's motion should have been denied, albeit without prejudice to renewal after completion of discovery proceedings. For the same reasons, summary judgment should be denied as no discovery has been held. NEGLIGENCE CASES DO NOT USUALLY LEND THEMSELVES TO SUMMARY JUDGMENT 7. Ithas been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Vega v. Restani Const.Corp,18 N.Y.3d 499, 503 (2012); Sternbach v. Cornell Univ., 162 AD 2d 922, 923 (3d Dept, 1990) In deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and where there is any doubt as to the existence of a triable issue of fact, itshould deny the motion since the goal is issue finding rather than issue determination. Swartout v. Consolidated Rail Corp., 294 AD 2d 785, 786 (3d Dept, 2002); see also, Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339 (2011); Greco v.Boyce, 262 AD2d 734, 734 (3d Dept, 1999) (holding courts are to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences and to ascertain whether a material, triable issue of fact exists. 8. The Court of Appeals has stated that negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if allparties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination. Ugarriza v. Schmieder, 46 N.Y.2d 471, 474. Only if itcan be concluded as a matter of law that defendant was negligent, may summary judgment be granted in a negligence action.Id. 9. It isequally well settled by the Court of Appeals that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of 4 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 sufficient evidence to demonstrate the absence of any material issues of fact. law, tendering Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); see also Winegrad v. New York Univ.Med.Ctr., 64 N.Y.2d 851 (1985); Zuckerman v. City of New York, 49 NY 2d 557 (1980); accord Hollis v. Charlew Const.Co., Inc., 302 AD 2d 700 (3d Dept, 2003) 10. To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. See Alvarez, 68 NY 2d at 320; Hollis, 302 AD 2d at 700. Such burden may not be met by pointing to gaps in plaintiff's proof. DiBartolomeo v. St.Peter's Hosp.of City of Albany, 73 A.D.3d 1326 (3d Dept, 2010); accord Dow v. Schenectady County Dept.of Social Servs., 46 AD 3d 1084, 1084 (3d Dept, 2007) The failure of the moving papers to eliminate all material issues of fact requires the denial of the motion for summary judgment. See Alvarez, 68 N.Y.2d at 324; Winegrad, 64 N.Y.2d at 853. If the movant fails to make prima facie showing the motion for summary judgment must be denied even ifthe non-movant's papers are considered insufficient. See Winegrad, 64 N.Y.2d at853; see also, Wilson v. Proctor's Theater & Arts Ctr., 223 AD 2d 826 (3d Dept, 1996) 11. Based on the summary judgment standard, this motion must be denied as not only is it premature, but there are questions of fact as to when the vehicle was reported stolen and Yevgeni Kaniayev's liability for permissive use as the owner of the vehicle. DEFENDANT'S EVIDENCE FAILS TO WARRANT SUMMARY JUDGMENT IN THIS CASE 12. Defendant Yevgeni Kaniayev submits the uncertified police complaint report which is not proper evidence to determine a motion for summary judgment. See Defendant's Exhibit "B"; CPLR Section 4518; see Memenza v. Cole, 131 AD 3d 1020, 1021. Further, despite the inadmissibility, the complaint creates an issue of fact that the vehicle was not reported until after 5 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 the motor vehicle accident on June 12, 2020 under the second section under reported states: 2020-06-12. Defendant has not submitted a certified Complaint nor has anyone testified as to the meaning and determination of said Complaint. VEHICLE AND TRAFFIC LAW SECTION 388 ESTABLISHES A REBUTTABLE PRESUMPTION THAT A VEHICLE OWNER CONSENTED TO THE OPERATION OF THE VEHICLE 13. Vehicle and Traffic Law Section 388 establishes a rebuttable presumption that a vehicle owner consented to the operation of her vehicle by another party once a plaintiff meets the threshold requirement of proving a defendant's ownership of a vehicle. As an owner is vicariously liable for the acts of a permitted driver, the owner's fault is not an issue. Reyes v. Chee Trucking 20 Misc 3d 1109 ( a ) (N.Y.Sup.Ct. June 27, 2008) There has been no depositions held of Yevgeni Kaniayev, only a self serving statement to say that she didn't give permission to James Cornelius, which is a self serving statement. Plaintiff is entitled to cross examine the defendant. Credibility cannot be determined on a motion for summary judgment. Chimbo v. (2nd Bolivar, 2016 NY Slip Op 05969 Dept, 2016) Plaintiff should also have the opportunity to conduct the deposition of driver James Cornelius by subpoena. As such, Summary Judgment should respectfully be denied. 14. Vehicle and Traf)ìc Law Section 388 prevents vehicle owners from disclaiming liability simply by a self serving claim that a vehicle was being used without their permission. E Further, VTLSection 388 encourages owners to be judicious with whom they give authority to use their vehicle. K If owners select better and more responsible drivers then, theoretically fewer accidents will occur. Idd_ Similarly here, Yevgeni Kaniayev's self serving claim cannot suffice for summary judgment, especially where the motion is premature. 15.In Bernard v. Mumuni, 6 N.Y. 3d 881 (2006), the owner of a minivan had recently sold his 6 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 car but was going out of town before the exchange could be made. He leftitwith his friend to complete the deal. The friend's son who was recently home from college, saw the keys to the car on the table and assumed that itwas the car that his father had mentioned he was going to buy for his son. Id. The son, who was not a licensed driver, got into an accident while driving the minivan and plaintiff tried to impose liability on the owner defendant via Vehicle and Traffic Law Section 388. 16.The Court found that the question of consent belonged to the jury as the owner's friend claimed that the defendant never said not to operate the vehicle. Bernard, supra. As such, the court found that a reasonable jury could infer that implied consent could extend to any person who drove the minivan. Since the owner put the chain of events in motion, he could be found liable for the resulting accident even though his friend's son did not have a driver's license. The lack of a driver's license does not negate statutory liability. Id. Herein, the issue of consent is one for a jury to decide and no discovery has proceeded which places Plaintiff in an unfair position to oppose this motion. (2nd 17. In Cherry v. Tucker, 5 AD 3d 433 Dept), a security guard was involved in a car accident. The defendant-owner presented evidence that the guards were not allowed to drive the vehicles, that the guard was the last one to drive the car and that the owner filed a missing vehicle report 12 days after the car was last seen. The Court still did not consider this substantial evidence to rebut the presumption that the car was driven with the owner's consent and the question went to the jury. The court so held without offering further explanation as to why the evidence was insubstantial. Here, similarly, the uncertified Complaint shows that the vehicle was not reported stolen until after the accident on June 12, 2020. Regardless, the issue of consent is one for a jury. (1" 18. In Matter of Eagle Ins.v.Lucia, 33 AD 3d 552 Dept, 2006), the case shows that there are 7 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 questions for a jury to decide where the issue of consent has already been presumptively rebutted by the defendant. There, the daughter was given permission to use the mother's car. However, the mother testified that she had given her daughter permission to use the car only to go to a play at her school and specifically no one else could drive it. Id The daughter testified that she knew no one else could use the car and only gave the keys to a friend to retrieve some books from the car. The friend, allowed her boyfriend to drive causing the accident. Id Under these facts, the mother would be liable under Vehicle and Traffic Law Section 388 if she had given her daughter unrestricted use of the car, but not the restricted use she testified to have given. Because the mother's testimony could be viewed as self serving, the court gave the question of consent to the jury. The court allowed the jury to determine ifthe mother's testimony was credible whereas testimony without such self interest would normally serve to rebut the presumption of consent. ISSUES OF CREDIBILITY CANNOT BE DECIDED ON A MOTION FOR SUMMARY JUDGMENT 19. Further, the Plaintiff has had no opportunity to question Yevgeni Kaniayev as to whether the keys were left in the vehicle and credibility cannot be determined on this motion for summary judgment. New York State Vehicle and Traffic Law Section 1210 (a ) 20. Additionally, even with a certified police report, unknown sources contained therein may not be admitted for their truth. Noakes v. Rosa, 54 AD 3d 317 , 318. Therefore, the police accident report is not admissible even despite the certification as the hearsay statements cannot be used to prove the truth of the matters asserted. CONCLUSION 21. As Defendant failed to make a prima facie showing, their motion for summary judgment must be denied as the Complaint report is uncertified; the report shows the vehicle was reported a 8 of 9 FILED: RICHMOND COUNTY CLERK 01/13/2023 04:51 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/13/2023 day after the motor vehicle accident on June 12, 2020, and the police report itselfcontains hearsay statements with no known source as to where the information was derived. Further, there is a rebuttable presumption that the owner Yevgeni Kaniayev gave permission to the driver James Cornelius to operate said vehicle. Lastly, there has been no discovery to date and itplaces Plaintiff in an unfair, prejudicial position to oppose this Summary Judgement without full opportunity to question and cross examine Defendant Yevgeni Kaniayev including about their self serving statements in the Affidavit. 22. For these reasons, Defendant Yevgeni Kaniayev's Motion for Summary Judgment must be denied in its entirety. WHEREFORE, itis respectfully submitted that Defendant Yevgeni Kaniayev's Motion for Summary Judgment be denied in itsentirety together with such other and further relief as the Court deems just and proper. DATED: GARDEN CITY, NEW YORK January 13, 2022 . RI ESQ. 9 of 9