Preview
FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
- ------------ - - - - - - - - - - - - x AFFIRMATION IN
BAJRAM DOMBALIC and SAMUEL GARCIA, SUPPORT
Plaintiffs,
v. Index No. 151145/21
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendants.
-------------------------x
DEBORAH C. ZACHARY, an attorney duly licensed to practice law in the State of
New York, states the following under penalty of perjury:
1. I am a partner with the law firm of Zachary & Zachary PC, attorneys for the
defendant Yevgeni Kaniayev in the above captioned matter, and as such am fully
familiar with the facts and circumstances of this action. I make this affirmation in
support of the instant motion pursuant to CPLR 2221 to reargue and renew this court's
decision and order on motion entered on February 3, 2023 (Exhibit A) which denied the
defendant's motion for summary judgment.
2. The defendant's underlying motion (Exhibit B) was for summary judgment
based upon the fact that the defendant James Cornelius did not have permissive use
of the vehicle owned by defendant Yevgeni Kaniayev at the time of the subject
accident. Plaintiff's affidavit in opposition is attached as Exhibit C and the defendant's
reply affidavit is attached as Exhibit D.
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3. The basis of the court's denial of the motion was the court's sua sponte
judicial notice of the criminal court file of James Cornelius using software available to
the court known as "New York Bench". In using same, the court found that the
defendant Cornelius was charged in New York County with various crimes and
violations resulting from his use and operation of the Kaniayev vehicle and resultant
accident which is the subject of this lawsuit.
4. The court stated that the defendant Cornelius pled guilty to driving while
intoxicated, but that there was a dismissal of the charges denominated as PL 165.50,
Degree"
"Criminal Possession of Stolen Property in the Third and VTL 426,
"Punishment for Making False Statement; Stolen Vehicles". These charges were
marked as "Dismissed (Motion to Dismiss Granted, Sealed 160.50)".
5. The court herein opined that "There can be no dispute that the value of a full
and final adjudication on the merits [on a motion to dismiss], has greater evidentiary
value than a police report, and therefore the court deemed this information to be
consequential and worthy of judicial notice".
6. The court apparently found that this dismissal created an issue of fact as to
whether or not movant Yevgehi Kaniayev gave James Cornelius permission to use his
car, and denied the motion for summary judgment.
7. As the court noted, the relevant charges in this case were sealed. There is no
evidence as to what the basis of the dismissal was. The statute sets forth numerous
bases for a matter to be dismissed pursuant to New York Criminal Procedure Law
210.20. Those grounds include:
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a. Such indictment or count is defective, within the meaning of section
210.25; or
b. The evidence before the grand jury was not legally sufficient to
establish the offense charged or any lesser included offense; or
c. The grand jury proceeding was defective, within the meaning of
section 210.35; or
d.. The defendant has immunity with respect to the offense charged,
pursuant to section 50.20 or 190.40; or
e. The prosecution is barred by reason of a previous prosecution,
pursuant to section 40.20; or
f. The prosecution is untimely, pursuant to section 30.10; or
g. The defendant has been denied the right to a speed trial; or
h. There exists some other jurisdictional or legal impediment to
conviction of the defendant for the offense charged; or
i. Dismissal is required in the interest of justice, pursuant to section
210.40.
8. As the court did not advise under which portion of the statute the dismissal
was made, it is assumed that the motion and the determination of the motion in its
entirety were sealed. Therefore, the court's opinion that the dismissal was made "on
merits"
the as opposed to any other procedural or substantive defect or legal
impediment as stated in the statute above is speculative.
9. As the matter was sealed and not available to the parties or even the court, it
cannot be used as a basis for creating a question of fact in order to deny the motion for
summary judgment. People v. Gomez, 2005 2005 N.Y. Slip Op. 51614 (N.Y. Crim.Ct.
2005).
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10. Without the ability to examine the records of a sealed case, there are no
facts available to the court to take judicial notice of. People v. Perez, 195 Misc.2d 171
(N.Y. Crim. Ct. 2003).
11. As stated by the Court of Appeals in Zuckerman v. City of New York, 49
N.Y.2d 557 (N.Y. 1980):
We repeat a precept stated - where
today frequently
the moving party has demonstrated its entitlement to summary
judgment, the party opposing the motion must demonstrate
with admissible evidence the existence of a factual issue requiring
a trial of the action or tender an acceptable excuse for his
failure to do so, and the submission of a hearsay affirmation
. . . does not satisfy this requirement.
12. A sealed motion to dismiss does not constitute factual admissible evidence
in a motion for summary judgment. A finding that a sealed motion to dismiss is a
determination of a case "on the merits", is pure speculation.
merits"
13. The phrase "on the refers to a case whose decision rests upon the
law as it applied to the particular evidence and facts presented in a case. This is in
opposition to cases whose decisions rest upon procedural grounds. There is no
evidence in this case that the criminal count of Criminal Possession of a Stolen Vehicle
was dismissed on the merits.
14. In its decision the court noted that plaintiff's argument that the motion for
summary judgment is premature would, without the court's judicial notice of a sealed
document, be without merit, as the Second Department has repeatedly maintained that
the mere hope or speculation that evidence sufficient to defeat the motion might be
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uncovered during discovery is an insufficient basis for denying the motion as
premature.
15. The court apparently opined that the court's novel and inadvertently
discovered additional information created a question of fact as to whether the subject
vehicle was being operated with permissive use from the owner.
16. The court stated that the defendant Kaniaye's submission of an affidavit
under oath swearing that his vehicle was stolen, along with the certified police and
accident reports and the arrest of defendant Cornelius would ordinarily "be enough for
a Defendant to rebut the presumption of permissive use", but then further states:
"However, this court's incidental discovery of the dismissal of all relevant charges
Kaniayev relies upon to rebut the presumption of permissive use, raises an issue of
discovery."
fact, worthy, at the very least, of
17. Since the dismissal of the relevant criminal charges are under seal and the
facts unknown, there is no discovery that would not come under the impermissible
category of "mere hope or speculation that evidence sufficient to defeat the motion
discovery."
might be uncovered during Leak v. Hybrid Cars., Ltd., 132 AD3d 958b (2d
Dept. 2015).
17. The defendant Kaniayev set forth a prima facie case of entitlement to
summary judgment and the plaintiff offered no evidence in admissible form to defeat
Cornelius'
same. Likewise, the sealed motion to dismiss in co-defendant criminal
matter has no evidentiary value to defeat the defendant Kaniayev's motion for summary
judgment.
WHEREFORE, it is respectfully requested that the instant motion to reargue and
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renew the court's February 3, 2023 order be granted and that upon rearmament and
renewal, the defendant's motion for summary judgment be granted in it's entirety and
for such other and further relief as to this court deems just and proper.
D ORAH C. ZA ARY
Dated: Staten Island, New York
February 13, 2023
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Index No. 151145/2021
______........_____......--..__-.........._______................_..__......--.______
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____...._..........____________.._....______..____----------..._____.._.
BAJRAM DOMBALIC and SAMUEL GARCIA,
Plaintiff(s),
-against-
JAMES CORNELIUS and YEVGENI KANIAYEV,
Defendant(s),
_........_______________..______________.._______________.--------..
Notice of Motion
__.----..____________________-._______________...._______________....___.
ZACHARY & ZACHARY, P.C.
Attorneys for Defendants
Office & P.O. Address
75 Little Clove Road
Staten Island, New York 10301
(718) 442-2828
.___.....__.........___.....__________..___....________...________......__....___......_...______
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
New York State, certifies that, upon information and ellef and reasonable inquiry, the contentions
contained in the annexed document are not frivolou .
Dated: February 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . .
Debora . Zachary
Service of a copy of the within is hereby admitted
Dated:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Attorneys for
PLEASE TAKE NOTICE
NOTICE OF that the within is a (certified) copy ofan Order entered
ENTRY in the office of the clerk of the within named Court on
NOTICE OF that a of which the within is a true copy will be presented for
SETTLEMENT settlement to the of the within named Court.
ZACHARY & ZACHARY, P .C .
Attomeys for Defendants
75 Little Clove Road
Staten island, New York 10301
To:
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Preview
FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND - ------------ - - - - - - - - - - - - x AFFIRMATION IN BAJRAM DOMBALIC and SAMUEL GARCIA, SUPPORT Plaintiffs, v. Index No. 151145/21 JAMES CORNELIUS and YEVGENI KANIAYEV, Defendants. -------------------------x DEBORAH C. ZACHARY, an attorney duly licensed to practice law in the State of New York, states the following under penalty of perjury: 1. I am a partner with the law firm of Zachary & Zachary PC, attorneys for the defendant Yevgeni Kaniayev in the above captioned matter, and as such am fully familiar with the facts and circumstances of this action. I make this affirmation in support of the instant motion pursuant to CPLR 2221 to reargue and renew this court's decision and order on motion entered on February 3, 2023 (Exhibit A) which denied the defendant's motion for summary judgment. 2. The defendant's underlying motion (Exhibit B) was for summary judgment based upon the fact that the defendant James Cornelius did not have permissive use of the vehicle owned by defendant Yevgeni Kaniayev at the time of the subject accident. Plaintiff's affidavit in opposition is attached as Exhibit C and the defendant's reply affidavit is attached as Exhibit D. 1 of 7 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023 3. The basis of the court's denial of the motion was the court's sua sponte judicial notice of the criminal court file of James Cornelius using software available to the court known as "New York Bench". In using same, the court found that the defendant Cornelius was charged in New York County with various crimes and violations resulting from his use and operation of the Kaniayev vehicle and resultant accident which is the subject of this lawsuit. 4. The court stated that the defendant Cornelius pled guilty to driving while intoxicated, but that there was a dismissal of the charges denominated as PL 165.50, Degree" "Criminal Possession of Stolen Property in the Third and VTL 426, "Punishment for Making False Statement; Stolen Vehicles". These charges were marked as "Dismissed (Motion to Dismiss Granted, Sealed 160.50)". 5. The court herein opined that "There can be no dispute that the value of a full and final adjudication on the merits [on a motion to dismiss], has greater evidentiary value than a police report, and therefore the court deemed this information to be consequential and worthy of judicial notice". 6. The court apparently found that this dismissal created an issue of fact as to whether or not movant Yevgehi Kaniayev gave James Cornelius permission to use his car, and denied the motion for summary judgment. 7. As the court noted, the relevant charges in this case were sealed. There is no evidence as to what the basis of the dismissal was. The statute sets forth numerous bases for a matter to be dismissed pursuant to New York Criminal Procedure Law 210.20. Those grounds include: 2 of 7 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023 a. Such indictment or count is defective, within the meaning of section 210.25; or b. The evidence before the grand jury was not legally sufficient to establish the offense charged or any lesser included offense; or c. The grand jury proceeding was defective, within the meaning of section 210.35; or d.. The defendant has immunity with respect to the offense charged, pursuant to section 50.20 or 190.40; or e. The prosecution is barred by reason of a previous prosecution, pursuant to section 40.20; or f. The prosecution is untimely, pursuant to section 30.10; or g. The defendant has been denied the right to a speed trial; or h. There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged; or i. Dismissal is required in the interest of justice, pursuant to section 210.40. 8. As the court did not advise under which portion of the statute the dismissal was made, it is assumed that the motion and the determination of the motion in its entirety were sealed. Therefore, the court's opinion that the dismissal was made "on merits" the as opposed to any other procedural or substantive defect or legal impediment as stated in the statute above is speculative. 9. As the matter was sealed and not available to the parties or even the court, it cannot be used as a basis for creating a question of fact in order to deny the motion for summary judgment. People v. Gomez, 2005 2005 N.Y. Slip Op. 51614 (N.Y. Crim.Ct. 2005). 3 of 7 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023 10. Without the ability to examine the records of a sealed case, there are no facts available to the court to take judicial notice of. People v. Perez, 195 Misc.2d 171 (N.Y. Crim. Ct. 2003). 11. As stated by the Court of Appeals in Zuckerman v. City of New York, 49 N.Y.2d 557 (N.Y. 1980): We repeat a precept stated - where today frequently the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate with admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so, and the submission of a hearsay affirmation . . . does not satisfy this requirement. 12. A sealed motion to dismiss does not constitute factual admissible evidence in a motion for summary judgment. A finding that a sealed motion to dismiss is a determination of a case "on the merits", is pure speculation. merits" 13. The phrase "on the refers to a case whose decision rests upon the law as it applied to the particular evidence and facts presented in a case. This is in opposition to cases whose decisions rest upon procedural grounds. There is no evidence in this case that the criminal count of Criminal Possession of a Stolen Vehicle was dismissed on the merits. 14. In its decision the court noted that plaintiff's argument that the motion for summary judgment is premature would, without the court's judicial notice of a sealed document, be without merit, as the Second Department has repeatedly maintained that the mere hope or speculation that evidence sufficient to defeat the motion might be 4 of 7 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023 uncovered during discovery is an insufficient basis for denying the motion as premature. 15. The court apparently opined that the court's novel and inadvertently discovered additional information created a question of fact as to whether the subject vehicle was being operated with permissive use from the owner. 16. The court stated that the defendant Kaniaye's submission of an affidavit under oath swearing that his vehicle was stolen, along with the certified police and accident reports and the arrest of defendant Cornelius would ordinarily "be enough for a Defendant to rebut the presumption of permissive use", but then further states: "However, this court's incidental discovery of the dismissal of all relevant charges Kaniayev relies upon to rebut the presumption of permissive use, raises an issue of discovery." fact, worthy, at the very least, of 17. Since the dismissal of the relevant criminal charges are under seal and the facts unknown, there is no discovery that would not come under the impermissible category of "mere hope or speculation that evidence sufficient to defeat the motion discovery." might be uncovered during Leak v. Hybrid Cars., Ltd., 132 AD3d 958b (2d Dept. 2015). 17. The defendant Kaniayev set forth a prima facie case of entitlement to summary judgment and the plaintiff offered no evidence in admissible form to defeat Cornelius' same. Likewise, the sealed motion to dismiss in co-defendant criminal matter has no evidentiary value to defeat the defendant Kaniayev's motion for summary judgment. WHEREFORE, it is respectfully requested that the instant motion to reargue and 5 of 7 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023 renew the court's February 3, 2023 order be granted and that upon rearmament and renewal, the defendant's motion for summary judgment be granted in it's entirety and for such other and further relief as to this court deems just and proper. D ORAH C. ZA ARY Dated: Staten Island, New York February 13, 2023 6 of 7 FILED: RICHMOND COUNTY CLERK 02/13/2023 04:00 PM INDEX NO. 151145/2021 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 02/13/2023 Index No. 151145/2021 ______........_____......--..__-.........._______................_..__......--.______ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND _____...._..........____________.._....______..____----------..._____.._. BAJRAM DOMBALIC and SAMUEL GARCIA, Plaintiff(s), -against- JAMES CORNELIUS and YEVGENI KANIAYEV, Defendant(s), _........_______________..______________.._______________.--------.. Notice of Motion __.----..____________________-._______________...._______________....___. ZACHARY & ZACHARY, P.C. Attorneys for Defendants Office & P.O. Address 75 Little Clove Road Staten Island, New York 10301 (718) 442-2828 .___.....__.........___.....__________..___....________...________......__....___......_...______ Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and ellef and reasonable inquiry, the contentions contained in the annexed document are not frivolou . Dated: February 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . Debora . Zachary Service of a copy of the within is hereby admitted Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Attorneys for PLEASE TAKE NOTICE NOTICE OF that the within is a (certified) copy ofan Order entered ENTRY in the office of the clerk of the within named Court on NOTICE OF that a of which the within is a true copy will be presented for SETTLEMENT settlement to the of the within named Court. ZACHARY & ZACHARY, P .C . Attomeys for Defendants 75 Little Clove Road Staten island, New York 10301 To: 7 of 7