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FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____--_____________________________________________________________Ç
BAJRAM DOMBALIC and SAMUEL GARCIA, NOTICE OF MOTION
Plaintiff(s), Index No.: 151145/2021
-against-
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendant(s).
__--------------------_________________________---___________---____Ç
PLEASE TAKE NOTICE, that upon the Affirmation of Deborah C. Zachary dated
November 3, 2022 and the annexed exhibits and all pleadings heretofore served herein, the
undersigned will move this Court at the Supreme Court, Richmond County, located at 26 Central
13"'
Avenue, Staten Island, New York, on the on day of December , 2022 at 9:30 a.m. or as soon
thereafter as counsel can be heard for an Order granting summary judgment to defendant
YEVGENI KANIAYEV and for such other and further relief as this Court may deem just and
proper.
Pursuant to CPLR 2214(b), answering affidavits, if any, are to be served upon the
undersigned at least seven (7) days before the return date of this motion.
Dated: Staten Island, New York
November 3, 2022
Y r t .
be o h C. Zachary, q.
ZAC ARY & ZACHARY, P.C.
Attorneys for Defendant KANIAYEV
75 Little Clove Road
Staten Island, New York 10301
(718) 442-2828
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TO: Decolator, Cohen & DiPrisco, LLP.
Attorney for Plaintiff
1399 Franklin Avenue, Suite 300
Garden City, New York 11530
(516) 742-6575
James Cornelius
Defendant Pro Se
410 Ocean Avenue, Basement
Brooklyn, New York 11235
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
___________________________________________________-____________________Ç
AMENDED
BAJRAM DOMBALIC and SAMUEL GARCIA, STATEMENT OF
MATERIAL FACTS
Plaintiff(s), Index No.: 151145/2021
-against-
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendant(s).
______________________________----______________________________________Ç
Pursuant to Part 202.8-g of the Uniform Civil Rules for the Supreme Court and the
County Court, defendant YEVGENI KANIAYEV states the following:
Statement of Material Facts Pursuant to Uniform Rules 202.8-g
1. This case involves a two car motor vehicle accident that occurred on June 11, 2020.
2. At the time of the accident defendant Yevgeni Kaniayev was the owner of a 2015 Jeep
with License plate New York Registration MOVINN. (See Exhibit B, affidavit of Yevgeni
Kaniayev)
3. According to the police report, the vehicle was being driven by defendant James
Cornelius.
4. Defendant Yevgeni Kaniayev did not know James Cornelius and never gave him
permission to drive his car. (Exhibit B).
5. The 2015 Jeep owned by defendant Yevgeni Kaniayev was stolen by James Cornelius.
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6. James Cornelius was arrested for Grand Theft of a Motor Vehicle.
Dated: Staten Island, New York
November 3, 2022
Y urs tc.
rah hary, sq.
ZACHA & ZACHAR , .C.
Attorneys for Defendant IAYEV
75 Little Clove Road
Staten Island, New York 10301
(718) 442-2828
TO: Decolator, Cohen & DiPrisco, LLP.
Attorney for Plaintiff
1399 Franklin Avenue, Suite 300
Garden City, New York 11530
(516) 742-6575
James Cornelius
Defendant Pro Se
410 Ocean Avenue, Basement
Brooklyn, New York 11235
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
__________________________-_________________________________________Ç
BAJRAM DOMBALIC and SAMUEL GARCIA, AFFIRMATION IN SUPPORT
Plaintiff(s), Index No.: 151145/2021
-against-
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendant(s).
______________---_________---______________--_______________________Ç
DEBORAH C. ZACHARY an attorney duly licensed to practice law before the Courts of
the State of New York affirms the following to be true under the penalty of perjury:
1. I am an attorney duly licensed to practice law in the State of New York and as such
am a partner in the law firm of Zachary & Zachary, P.C., attorneys for the defendant Yevgeni
Kaniayev in regard to the above captioned matter.
2. I make this affirmation in support of the instant Motion pursuant to CPLR 3212 for
summary judgment in favor of defendant Yevgeni Kaniayev, dismissing the action against him
and deleting his name from the caption. The basis of the motion is that the defendant Kaniayev's
vehicle was stolen by defendant James Cornelius at the time of the accident.
3. This action in which the plaintiffs seek damages for personal injuries which occurred
on June 11, 2020 in a motor vehicle accident, was commenced by the filing of a Summons and
Complaint on June 15, 2021. Issue was joined by the service of an answer by defendant Yevgeni
Kaniayev on September 8, 2021. Defendant James Cornelius has not appeared in the action.
The pleadings are annexed hereto as Exhibit A.
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4. Defendant Kaniayev in his answer denied that James Cornelius had permission to
operate his vehicle.
5. Annexed hereto as Exhibit B is the sworn affidavit of defendant Yevgeni Kaniayev.
Mr. Kaniayev acknowledges that on the date of the accident, June 11, 2020, he was the owner of
a 2015 Jeep vehicle with Virginia license plate number MOVINN.
6. However, he swears that the driver of the vehicle at the time of the accident, James
Cornelius, had stolen the vehicle and it was not being operated with the permission of defendant
Kaniayev.
7. Defendant Kaniayev has never met James Cornelius and has never given him
permission to drive the vehicle. He filed a complaint with the NYPD upon learning that the
vehicle had been stolen. He annexed a copy of the complaint he filed to his affidavit. (Exhibit
B)
8. Mr. Kaniayev had parked his car on Green Avenue in Brooklyn on June 9, 2020 or
June 10, 2020. He put the vehicle in park, locked the engine and took the keys with him. He had
no knowledge that the vehicle was stolen and involved in an accident until he received a call
from the NYPD at 3:00 a.m. on June 12, 2020 advising that the vehicle was involved in an
accident. At that point, he went outside and saw that the Jeep was not where he had parked it.
9. Annexed as Exhibit C is a certified copy of the amended police report of the accident
which shows that James Cornelius was arrested with an arrest number of M20618574M, the
violation was "PL 155.30(8)", Grand Larceny of a motor vehicle.
10. Vehicle & Traffic Law 388(1) provides that the owner of a motor vehicle shall be
liable for the negligence of one who operates the vehicle and it is presumed that a vehicle is
being operated with the owner's consent and permission. However, "Evidence that a vehicle was
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use."
stolen at the time of the accident will rebut the presumption of permissive Fuentes v.
Virgil, 119 AD3d 522, 522-23 (2d Dept. 2014).
11. The evidence submitted in support of the within motion, demonstrates that the
moving defendant, Yevgeni Kaniayev, cannot be held liable for this accident, as his vehicle, a
2015 Jeep, was stolen prior to the June 11, 2020 accident, and was being driven by co-defendant,
James Cornelius, without Kaniayev's knowledge, consent or permission.
12. In Vyrtle Trucking Corp. v. Browne, 93 AD3d 716, 717 (2d Dept. 2012), the
courts'
Appellate Division reversed the lower denial of defendant's Motion for summary
judgment. It found that defendant's submissions in support of his motion for judgment
summary
dismissing the complaint, including his affidavit and other documentary evidence, demonstrated
that his vehicle had been stolen prior to the accident with the plaintiff's vehicle, and that the
unknown driver of the defendant's car fled the scene on foot. "Under these circumstances, the
law."
defendant demonstrated his prima facie entitlement to judgment as a matter of The
Appellate Division reversed and dismissed the case.
13. In Khor v. Caesar, 2019 Slip. Op. 33378, (Sup. NY, 2019) the court held that the
defendant had overcome the presumption of permissive use submittino an affidavit wherein
by
he stated that his vehicle was stolen, that he did not know the driver of the vehicle or give him
permission to use the car. Additionally, the defendant attached a Stolen Vehicle Report and
Police Accident Report, both of which acknowledge that the vehicle was stolen.
14. In Fuentes v. Virgil, 119 AD3d 522 (2d Dept. 2014) the Appellate Division noted
that evidence showing defendant's vehicle was stolen rebutted the presumption of permissive
use. In Fuentes the court held that the defendant's sworn and certified
submissions, testimony
Police Report and report of Stolen Vehicle did rebut the presumption of permissive use.
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Additionally, the driver of the stolen vehicle was apprehended at the scene and criminally
prosecuted, demonstrating the defendant's prima facie entitlement to judgment as a matter of
law.
15. In the instant matter, the defendant Yevgeni Kaniayev submitted an affidavit that his
vehicle was stolen, that he does not know the driver, attached his Stolen Vehicle Report and
Certified Police Report indicating that James Cornelius was arrested for Grand Theft of a Motor
Vehicle. Further, James Cornelius was arrested with the charge of Grand Larceny of a Motor
Vehicle. As such, defendant Yevgeni Kaniayev has set forth a prima facie case of entitlement to
summary judgment.
WHEREFORE, it is respectfully requested that the instant motion for summary judgment
be granted in its entirety, together with such other and further relief as this Court deems just and
proper.
Dated: Staten Island, New York
November 3, 2022
Deb ah C. Zachary, Esq.
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Exhibit A
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IFILED
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DOC. NO. 34 COUNTY r TRK 0 6 / 15 / 2021 10 : 15 AM RECEIVED NYSCEF: 02/13/2023
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/15/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____.______.____...______..___...___________.x
BAJRAM DOMBALIC and SAMUEL GARCIA, SUMMONS
Plaintiffs', Index No.
- against -
Date Filed:
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendants.
.__________________________.----.....--....x
TO THE ABOVE NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED to appear in this action by serving a notice of
plaintiffs'
appearance on the attorneys within 20 days after the service of this summons,
exclusive of the day of service, or within 30 days after service is complete if this summons is not
personally delivered to you within the State of New York. In case of your failure to answer,
judgment will be taken against you by default for the relief demanded in the complaint.
The basis of the venue designated is plaintiff BAJRAM DOMBALIC's place of
residence.
Dated: Garden City, New York
June 7, 2021
Yours, etc.
Decolator, Cohen & Prisco, LLP
By: Dominic DiPrisco
Attorneys for Plaintiffs
1399 Franklin Avenue, Suite 300
Garden City, New York 11530
(516) 742-6575
DEFENDANT'S ADDRESS:
JAMES CORNELIUS YEVGENI KANIAYEV
410 Ocean Avenue, Basement 20605 Morningside Terrace
Brooklyn, New York 11235 Sterling, VA 20165
YEVGENI KANIAYEV
c/o Secretary of State
Albany, New York
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
------------------------------------------------------X Index No.
BAJRAM DOMBALIC and SAMUEL GARCIA,
Plaintiffs, VERIFIED
-against- COMPLAINT
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendants.
__..._.....---..._......_...--..._____.--.....---X
Plaintiffs, by their attorneys, DECOLATOR, COHEN & DIPRISCO, LLP, as and for
their Verified Complaint, respectfully alleges, upon information and belief, as follows:
AS AND FOR A FIRST CAUSE OF ACTION
ON BEHALF OF THE PLAINTIFFS
1. That at all times hereinafter mentioned, the plaintiff, BAJRAM DOMBALIC, was
and still is a resident of the County of Richmond, State of New York.
2. That at all times hereinafter mentioned, the plaintiff, SAMUEL GARCIA, was
and still is a resident of the County of Bronx, State of New York.
3. At all times hereinbefore mentioned, plaintiffs were and still is are police officers
employed by the New York City Police Department and was acting within the scope and
furtherance of their duties as police officers.
4. Upon information and belief, at all times hereinafter mentioned, the defendant,
JAMES CORNELIUS, was and still is a resident of the County of Kings and State of New York.
5. Upon information and belief, at all times hereinafter mentioned, the defendant,
YEVGENI KANIAYEV, was and still is a resident of the County of Loudoun and State of
Virginia.
2
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6. Upon information and belief, at all times hereinafter mentioned, the defendant,
YEVGENI KANIAYEV, was the owner of a certain 2015 Jeep motor vehicle, bearing Virginia
registration number MOVINN.
7. Upon information and belief, at all times hereinafter mentioned, the defendant,
JAMES CORNELIUS, was the operator of a certain 2015 Jeep motor vehicle, bearing Virginia
registration number MOVINN.
8. That at all times hereinafter mentioned, the defendant, JAMES CORNELIUS ,
operated and controlled the said motor vehicle with the express and/or implied permission and
consent of the owner/defendant, YEVGENI KANIAYEV, thereof.
9. Upon information and belief, at all times hereinafter mentioned, New York City
Police Department, by The City of New York, was the owner of a certain 2015 Ford motor
vehicle, bearing New York registration number 526316.
10. At all times hereinafter mentioned, Plaintiff, SAMUEL GARCIA, was the
operator of a certain 2015 Ford motor vehicle, bearing New York registration number 526316.
11. Upon information and belief, Plaintiff, SAMUEL GARCIA, operated and
controlled the aforesaid motor vehicle with the permission and/or implied consent of the owner,
The City of New York, thereof.
12. That at all times hereinafter mentioned, plaintiff, BAJRAM DOMBALIC, was a
passenger in a certain 2015 Ford motor vehicle, bearing New York City registration number
526316.
13. On or about June 11, 2020, at or about 213 Park Avenue South, in the County,
City and State of New York, was and still is a public highway.
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14. At the time and place aforesaid, and the vehicle operated by the defendant,
plaintiffs'
JAMES CORNELIUS, as aforesaid, came into contact with the vehicle the were in.
15. On or about June 11, 2020, at about 8:40 p.m., while the plaintiffs were lawfully
and properly in the vehicle at the location of 213 Park Avenue South, New York, New York, the
defendant, JAMES CORNELIUS, at the time operated his vehicle in such negligent and careless
fashion as to cause a collision to occur, causing severe personal injuries to the plaintiffs.
16. The said collision was caused solely and wholly by reason of the negligence and
plaintiffs'
carelessness of the defendants, with no fault or culpable conduct on the part of the
contributing thereto.
17. The said defendants so negligently and carelessly owned, managed, operated and
controlled the said motor vehicle, that without any negligence or fault on the part of the
plaintiffs', and solely by reason of the negligence and carelessness of said defendants,
defendants' plaintiffs'
motor vehicle came into contact with the vehicle and, as a result, the
plaintiffs'
sustained the injuries hereinafter described.
Plaintiffs'
18. have sustained serious injuries as same are defined in Subdivision (d)
of Section 5102 of the Insurance Law of the State of New York and economic loss greater than
basic loss as defined in said section of the law.
19. This action falls within one or more of the exceptions set forth in CPLR Section
1602.
defendants' plaintiffs'
20. As a result of negligence as aforesaid, the was severely
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FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND _____--_____________________________________________________________Ç BAJRAM DOMBALIC and SAMUEL GARCIA, NOTICE OF MOTION Plaintiff(s), Index No.: 151145/2021 -against- JAMES CORNELIUS and YEVGENI KANIAYEV, Defendant(s). __--------------------_________________________---___________---____Ç PLEASE TAKE NOTICE, that upon the Affirmation of Deborah C. Zachary dated November 3, 2022 and the annexed exhibits and all pleadings heretofore served herein, the undersigned will move this Court at the Supreme Court, Richmond County, located at 26 Central 13"' Avenue, Staten Island, New York, on the on day of December , 2022 at 9:30 a.m. or as soon thereafter as counsel can be heard for an Order granting summary judgment to defendant YEVGENI KANIAYEV and for such other and further relief as this Court may deem just and proper. Pursuant to CPLR 2214(b), answering affidavits, if any, are to be served upon the undersigned at least seven (7) days before the return date of this motion. Dated: Staten Island, New York November 3, 2022 Y r t . be o h C. Zachary, q. ZAC ARY & ZACHARY, P.C. Attorneys for Defendant KANIAYEV 75 Little Clove Road Staten Island, New York 10301 (718) 442-2828 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 TO: Decolator, Cohen & DiPrisco, LLP. Attorney for Plaintiff 1399 Franklin Avenue, Suite 300 Garden City, New York 11530 (516) 742-6575 James Cornelius Defendant Pro Se 410 Ocean Avenue, Basement Brooklyn, New York 11235 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ___________________________________________________-____________________Ç AMENDED BAJRAM DOMBALIC and SAMUEL GARCIA, STATEMENT OF MATERIAL FACTS Plaintiff(s), Index No.: 151145/2021 -against- JAMES CORNELIUS and YEVGENI KANIAYEV, Defendant(s). ______________________________----______________________________________Ç Pursuant to Part 202.8-g of the Uniform Civil Rules for the Supreme Court and the County Court, defendant YEVGENI KANIAYEV states the following: Statement of Material Facts Pursuant to Uniform Rules 202.8-g 1. This case involves a two car motor vehicle accident that occurred on June 11, 2020. 2. At the time of the accident defendant Yevgeni Kaniayev was the owner of a 2015 Jeep with License plate New York Registration MOVINN. (See Exhibit B, affidavit of Yevgeni Kaniayev) 3. According to the police report, the vehicle was being driven by defendant James Cornelius. 4. Defendant Yevgeni Kaniayev did not know James Cornelius and never gave him permission to drive his car. (Exhibit B). 5. The 2015 Jeep owned by defendant Yevgeni Kaniayev was stolen by James Cornelius. FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 6. James Cornelius was arrested for Grand Theft of a Motor Vehicle. Dated: Staten Island, New York November 3, 2022 Y urs tc. rah hary, sq. ZACHA & ZACHAR , .C. Attorneys for Defendant IAYEV 75 Little Clove Road Staten Island, New York 10301 (718) 442-2828 TO: Decolator, Cohen & DiPrisco, LLP. Attorney for Plaintiff 1399 Franklin Avenue, Suite 300 Garden City, New York 11530 (516) 742-6575 James Cornelius Defendant Pro Se 410 Ocean Avenue, Basement Brooklyn, New York 11235 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND __________________________-_________________________________________Ç BAJRAM DOMBALIC and SAMUEL GARCIA, AFFIRMATION IN SUPPORT Plaintiff(s), Index No.: 151145/2021 -against- JAMES CORNELIUS and YEVGENI KANIAYEV, Defendant(s). ______________---_________---______________--_______________________Ç DEBORAH C. ZACHARY an attorney duly licensed to practice law before the Courts of the State of New York affirms the following to be true under the penalty of perjury: 1. I am an attorney duly licensed to practice law in the State of New York and as such am a partner in the law firm of Zachary & Zachary, P.C., attorneys for the defendant Yevgeni Kaniayev in regard to the above captioned matter. 2. I make this affirmation in support of the instant Motion pursuant to CPLR 3212 for summary judgment in favor of defendant Yevgeni Kaniayev, dismissing the action against him and deleting his name from the caption. The basis of the motion is that the defendant Kaniayev's vehicle was stolen by defendant James Cornelius at the time of the accident. 3. This action in which the plaintiffs seek damages for personal injuries which occurred on June 11, 2020 in a motor vehicle accident, was commenced by the filing of a Summons and Complaint on June 15, 2021. Issue was joined by the service of an answer by defendant Yevgeni Kaniayev on September 8, 2021. Defendant James Cornelius has not appeared in the action. The pleadings are annexed hereto as Exhibit A. FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 4. Defendant Kaniayev in his answer denied that James Cornelius had permission to operate his vehicle. 5. Annexed hereto as Exhibit B is the sworn affidavit of defendant Yevgeni Kaniayev. Mr. Kaniayev acknowledges that on the date of the accident, June 11, 2020, he was the owner of a 2015 Jeep vehicle with Virginia license plate number MOVINN. 6. However, he swears that the driver of the vehicle at the time of the accident, James Cornelius, had stolen the vehicle and it was not being operated with the permission of defendant Kaniayev. 7. Defendant Kaniayev has never met James Cornelius and has never given him permission to drive the vehicle. He filed a complaint with the NYPD upon learning that the vehicle had been stolen. He annexed a copy of the complaint he filed to his affidavit. (Exhibit B) 8. Mr. Kaniayev had parked his car on Green Avenue in Brooklyn on June 9, 2020 or June 10, 2020. He put the vehicle in park, locked the engine and took the keys with him. He had no knowledge that the vehicle was stolen and involved in an accident until he received a call from the NYPD at 3:00 a.m. on June 12, 2020 advising that the vehicle was involved in an accident. At that point, he went outside and saw that the Jeep was not where he had parked it. 9. Annexed as Exhibit C is a certified copy of the amended police report of the accident which shows that James Cornelius was arrested with an arrest number of M20618574M, the violation was "PL 155.30(8)", Grand Larceny of a motor vehicle. 10. Vehicle & Traffic Law 388(1) provides that the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle and it is presumed that a vehicle is being operated with the owner's consent and permission. However, "Evidence that a vehicle was FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 use." stolen at the time of the accident will rebut the presumption of permissive Fuentes v. Virgil, 119 AD3d 522, 522-23 (2d Dept. 2014). 11. The evidence submitted in support of the within motion, demonstrates that the moving defendant, Yevgeni Kaniayev, cannot be held liable for this accident, as his vehicle, a 2015 Jeep, was stolen prior to the June 11, 2020 accident, and was being driven by co-defendant, James Cornelius, without Kaniayev's knowledge, consent or permission. 12. In Vyrtle Trucking Corp. v. Browne, 93 AD3d 716, 717 (2d Dept. 2012), the courts' Appellate Division reversed the lower denial of defendant's Motion for summary judgment. It found that defendant's submissions in support of his motion for judgment summary dismissing the complaint, including his affidavit and other documentary evidence, demonstrated that his vehicle had been stolen prior to the accident with the plaintiff's vehicle, and that the unknown driver of the defendant's car fled the scene on foot. "Under these circumstances, the law." defendant demonstrated his prima facie entitlement to judgment as a matter of The Appellate Division reversed and dismissed the case. 13. In Khor v. Caesar, 2019 Slip. Op. 33378, (Sup. NY, 2019) the court held that the defendant had overcome the presumption of permissive use submittino an affidavit wherein by he stated that his vehicle was stolen, that he did not know the driver of the vehicle or give him permission to use the car. Additionally, the defendant attached a Stolen Vehicle Report and Police Accident Report, both of which acknowledge that the vehicle was stolen. 14. In Fuentes v. Virgil, 119 AD3d 522 (2d Dept. 2014) the Appellate Division noted that evidence showing defendant's vehicle was stolen rebutted the presumption of permissive use. In Fuentes the court held that the defendant's sworn and certified submissions, testimony Police Report and report of Stolen Vehicle did rebut the presumption of permissive use. FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 Additionally, the driver of the stolen vehicle was apprehended at the scene and criminally prosecuted, demonstrating the defendant's prima facie entitlement to judgment as a matter of law. 15. In the instant matter, the defendant Yevgeni Kaniayev submitted an affidavit that his vehicle was stolen, that he does not know the driver, attached his Stolen Vehicle Report and Certified Police Report indicating that James Cornelius was arrested for Grand Theft of a Motor Vehicle. Further, James Cornelius was arrested with the charge of Grand Larceny of a Motor Vehicle. As such, defendant Yevgeni Kaniayev has set forth a prima facie case of entitlement to summary judgment. WHEREFORE, it is respectfully requested that the instant motion for summary judgment be granted in its entirety, together with such other and further relief as this Court deems just and proper. Dated: Staten Island, New York November 3, 2022 Deb ah C. Zachary, Esq. FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 02/13/2023 Exhibit A FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 INDEX NO. 151145/2021 IFILED NYSCEF : RICHMOND DOC. NO. 34 COUNTY r TRK 0 6 / 15 / 2021 10 : 15 AM RECEIVED NYSCEF: 02/13/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND _____.______.____...______..___...___________.x BAJRAM DOMBALIC and SAMUEL GARCIA, SUMMONS Plaintiffs', Index No. - against - Date Filed: JAMES CORNELIUS and YEVGENI KANIAYEV, Defendants. .__________________________.----.....--....x TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to appear in this action by serving a notice of plaintiffs' appearance on the attorneys within 20 days after the service of this summons, exclusive of the day of service, or within 30 days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the complaint. The basis of the venue designated is plaintiff BAJRAM DOMBALIC's place of residence. Dated: Garden City, New York June 7, 2021 Yours, etc. Decolator, Cohen & Prisco, LLP By: Dominic DiPrisco Attorneys for Plaintiffs 1399 Franklin Avenue, Suite 300 Garden City, New York 11530 (516) 742-6575 DEFENDANT'S ADDRESS: JAMES CORNELIUS YEVGENI KANIAYEV 410 Ocean Avenue, Basement 20605 Morningside Terrace Brooklyn, New York 11235 Sterling, VA 20165 YEVGENI KANIAYEV c/o Secretary of State Albany, New York 1 1 of 9 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 INDEX NO. 151145/2021 |FILED NYSCEF : RICHMOND DOC. NO. 34 COUNTY C TRK 0 6 / 15 / 20 21 10:15 Ay RECEIVED NYSCEF: 02/13/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ------------------------------------------------------X Index No. BAJRAM DOMBALIC and SAMUEL GARCIA, Plaintiffs, VERIFIED -against- COMPLAINT JAMES CORNELIUS and YEVGENI KANIAYEV, Defendants. __..._.....---..._......_...--..._____.--.....---X Plaintiffs, by their attorneys, DECOLATOR, COHEN & DIPRISCO, LLP, as and for their Verified Complaint, respectfully alleges, upon information and belief, as follows: AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF THE PLAINTIFFS 1. That at all times hereinafter mentioned, the plaintiff, BAJRAM DOMBALIC, was and still is a resident of the County of Richmond, State of New York. 2. That at all times hereinafter mentioned, the plaintiff, SAMUEL GARCIA, was and still is a resident of the County of Bronx, State of New York. 3. At all times hereinbefore mentioned, plaintiffs were and still is are police officers employed by the New York City Police Department and was acting within the scope and furtherance of their duties as police officers. 4. Upon information and belief, at all times hereinafter mentioned, the defendant, JAMES CORNELIUS, was and still is a resident of the County of Kings and State of New York. 5. Upon information and belief, at all times hereinafter mentioned, the defendant, YEVGENI KANIAYEV, was and still is a resident of the County of Loudoun and State of Virginia. 2 2 of 9 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 INDEX NO. 151145/2021 |FILED NYSCEF : RICHMOND DOC. NO. 34 COUNTY r TRK 0 6 / 15 / 2 0 2 1 10 : 15 AF RECEIVED NYSCEF: 02/13/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/15/2021 6. Upon information and belief, at all times hereinafter mentioned, the defendant, YEVGENI KANIAYEV, was the owner of a certain 2015 Jeep motor vehicle, bearing Virginia registration number MOVINN. 7. Upon information and belief, at all times hereinafter mentioned, the defendant, JAMES CORNELIUS, was the operator of a certain 2015 Jeep motor vehicle, bearing Virginia registration number MOVINN. 8. That at all times hereinafter mentioned, the defendant, JAMES CORNELIUS , operated and controlled the said motor vehicle with the express and/or implied permission and consent of the owner/defendant, YEVGENI KANIAYEV, thereof. 9. Upon information and belief, at all times hereinafter mentioned, New York City Police Department, by The City of New York, was the owner of a certain 2015 Ford motor vehicle, bearing New York registration number 526316. 10. At all times hereinafter mentioned, Plaintiff, SAMUEL GARCIA, was the operator of a certain 2015 Ford motor vehicle, bearing New York registration number 526316. 11. Upon information and belief, Plaintiff, SAMUEL GARCIA, operated and controlled the aforesaid motor vehicle with the permission and/or implied consent of the owner, The City of New York, thereof. 12. That at all times hereinafter mentioned, plaintiff, BAJRAM DOMBALIC, was a passenger in a certain 2015 Ford motor vehicle, bearing New York City registration number 526316. 13. On or about June 11, 2020, at or about 213 Park Avenue South, in the County, City and State of New York, was and still is a public highway. 3 3 of 9 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 ' INDEX NO. 151145/2021 (Fil.ED NYSCEF : RICHMOND DOC. NO. 34 COUNTY TRK 0 6 /15 /2 021 10 : 15 At RECEIVED NYSCEF: 02/13/2023 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/15/2021 14. At the time and place aforesaid, and the vehicle operated by the defendant, plaintiffs' JAMES CORNELIUS, as aforesaid, came into contact with the vehicle the were in. 15. On or about June 11, 2020, at about 8:40 p.m., while the plaintiffs were lawfully and properly in the vehicle at the location of 213 Park Avenue South, New York, New York, the defendant, JAMES CORNELIUS, at the time operated his vehicle in such negligent and careless fashion as to cause a collision to occur, causing severe personal injuries to the plaintiffs. 16. The said collision was caused solely and wholly by reason of the negligence and plaintiffs' carelessness of the defendants, with no fault or culpable conduct on the part of the contributing thereto. 17. The said defendants so negligently and carelessly owned, managed, operated and controlled the said motor vehicle, that without any negligence or fault on the part of the plaintiffs', and solely by reason of the negligence and carelessness of said defendants, defendants' plaintiffs' motor vehicle came into contact with the vehicle and, as a result, the plaintiffs' sustained the injuries hereinafter described. Plaintiffs' 18. have sustained serious injuries as same are defined in Subdivision (d) of Section 5102 of the Insurance Law of the State of New York and economic loss greater than basic loss as defined in said section of the law. 19. This action falls within one or more of the exceptions set forth in CPLR Section 1602. defendants' plaintiffs' 20. As a result of negligence as aforesaid, the was severely