Preview
FILED: RICHMOND COUNTY CLERK 03/06/2023 06:48 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 03/06/2023
Exhibit J
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
139 RECEIVED NYSCEF: 03/06/2023
01/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
---- ------------------------- ------X
ESTHER DIPILATO,
Index No.: 750035/2018
Plaintiff,
NOTICE OF MOTION FOR
SUMMARY JUDGMENT
-against-
ANDREW SCIBELLI, SJ FUEL CO. INC., ANTHONY
DIPILATO, ALFREDO DOTTARIO JR. and
SAMMMO, LLC
Defendants.
-----¬------------------------------------------------------X
ANDREW SCIBELLI AND SJ FUEL CO. INC.,
Third Party Plaintiffs,
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, AND THE
NEW YORK CITY DEPARTMENT OF PARKS AND
RECREATION,
Third Party Defendants.
------------¬----------------------------------- ----X
PLEASE TAKE NOTICE, that upon the Affirmation of Karen C. Higgins. Esq., dated January 8,
2019, and the exhibits thereto, and all of the prior proceedings herein, Defendant Sammmo, LLC
shall move this Court, before Part C-2 of the Supreme Court, Richmond County, located at 26
Central Avenue, Staten Island, New York, on February 13, 2019 at 9:30 a.m., or as soon
thereafter as counsel can be heard, for an Order pursuant to CPLR 3212 granting Sammmo,
LLC's motion for summary judgment dismissing with prejudice Plaintiff's Complaint against
1
1 of 4
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
139 RECEIVED NYSCEF: 03/06/2023
01/08/2019
Sammmo LLC, and for such other, further and different relief as the Court deems just and
proper.
Dated: Bellmore, New York
January 8, 2019
Yours, etc.
Karen C. Higgins, Esq.
GO , BENES, LLP
Attorneys for Defendant
SAMMMO, LLC
2nd
1666 Newbridge Road, FlOOr
Bellmore, New York 11710
(516) 512-6333
To: Robert J. Eisen, Esq.
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiff
ESTHER DIPILATO
150 - 23rd FlOOr
Broadway
New York, New York 10038
WINGET, SPADAFORA &
SCHWARTZBERG, LLP
Attorneys for Defendants
Andrew Scibelli and
S.J. Fuel Co., Inc.
45 Broadway, 19th Floor
New York, New York 10096
Kelley A. Dunn
Zachary W. Carter
Corporation Counsel
Attorneys for Third Party Defendants
86¹
350 Jay Street, Floor
Brooklyn, New York 11201
Alfred Dottario Jr.
20 Samantha Lane
Staten Island, New York 10305
Anthony Dipilato
2
2 of 4
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
139 RECEIVED NYSCEF: 03/06/2023
01/08/2019
1110 Woodrow Road
Staten Island, New York 10312
3
3 of 4
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
139 RECEIVED NYSCEF: 03/06/2023
01/08/2019
SUPREME COURT STATE OF NEW YORK
COUNTY OF RICHMOND
---- -------------------------X
ESTHER DIPILATO,
Plaintiff,
Index No. 750035 2018
-against-
ANDREW SCIBELLI, SJ FUEL CO INC., ANTHONY
bATO, ALFREDOpOTTARIO JR. and SAMMMO, LLC
.
Defendants.
______ ___.. X
ANDREW SCIBELLI and SJ FUEL CO. INC.,
Third Party Plaintiffs,
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, and THE NEW
YORK CITY DEPARTMENT OF PARKS AND RECREATION
Third Party Defendants.
----------------------------- ------------------X
NOTICE OF MOTION FOR SUMMARY JUDGMENT
GOLD BENES LLP
Attorneys for Defendant
1666 Newbridge Road
Bellmore, New York 11710
(516) 512-6333
Fax: (516) 512-6334
4 of 4
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
140 RECEIVED NYSCEF: 03/06/2023
01/08/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
------- X
ESTHER DIPILATO,
Index No.: 750035/2018
Plaintiff,
AFFIRMATION IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT
-against-
ANDREW SCIBELLI, SJ FUEL CO. INC., ANTHONY
DIPILATO, ALFREDO DOTTARIO JR. and
SAMMMO, LLC
Defendants.
-- -----------X
ANDREW SCIBELLI AND SJ FUEL CO. INC.,
Third Party Plaintiffs,
-against-
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, AND THE
NEW YORK CITY DEPARTMENT OF PARKS AND
RECREATION,
Third Party Defendants.
X
Karen C. Higgins, Esq., an attorney duly admitted to practice law in the Courts of the State of
New York, hereby affirms the following to be true, under the penalties of perjury:
1. I am an attorney associated with the law firm of GOLD BENES LLP, attorneys
for the defendant SAMMMO, LLC ("S o"), and as such am fully familiar with the facts
and circumstances herein.
2. I submit this Affirmation in support of Defendant Sammmo's Motion for
Summary Judgment in the present case. Plaintiff asserts a cause of action for negligence against
1
1 of 9
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
140 RECEIVED NYSCEF: 03/06/2023
01/08/2019
defendant Sammmo for injuries she sustained in a motor vehicle accident in which Sammmo was
neither a driver or a passenger in, or owner of, any of the vehicles involved. Rather, Plaintiff
claims Sammmo breached a duty to her, a passenger in a car on a roadway, as an owner of the
premises adjacent to the public roadway on which the vegetation allegedly blocked the stop sign.
3. No such duty exists in common law or under any applicable statute or ordinance.
This precise issue has been resolved by the Appellate Division on numerous occasions and
Plaintiff has all but conceded this issue. Accordingly, Sammmo is entitled to summary judgment
dismissing Plaintiff's Complaint in this action.
STATEMENT OF FACTS
4. On or about February 27, 2017, Plaintiff Esther Dipilato filed her Verified
Complaint. In her Amended Verified Complaint (the relevant pleading in the present action), a
"A,"
copy of which is attached hereto as Exhibit Plaintiff makes the following allegations,
among others, against Sammmo:
30. That at all times herein mentioned, the defendant SAMMMO, LLC was
the owner of the premises located at 105 Benton Avenue, Staten Island, New York,
adjacent to a stop sign/traffic device.
* * *
35. That at all the times herein mentioned, the defendant SAMMMO, LLC's
property included trees with overhanging branches/shrubbery/hedges.
36. That at all the times herein mentioned, the defendant SAMMMO, LLC's
property included trees with overhanging trees/shrubbery/hedges which obscured the
aforementioned stop sign/traffic control device.
37. That at all the times hereinafter alleged, ESTHER DIPILATO, was a
passenger in a motor vehicle bearing registration number GWV3117 NY State owned by
defendant ANTHONY DIPILATO and operated by defendant ALFRED DOTTARIO JR,
with permission and consent of the owner and/or within the scope of his employment.
38. That at all the times herein mentioned, it was the duty of the defendant(s),
its agents, servants and/or employees to keep and maintain said premises, including the
trees with overhanging branches/shrubbery/hedges which obscured the stop sign/traffic
2
2 of 9
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
140 RECEIVED NYSCEF: 03/06/2023
01/08/2019
control devices in a reasonable state of repair and good and safe condition, and not to
suffer and permit said premises become unsafe and dangerous to pedestrians and/or
motorists.
39. That on or about 9/1/2017, while plaintiff ESTHER DIPILATO was a
passenger in a motor vehicle bearing registration number GWV3117 NY State upon the
aforementioned roadway, plaintiff ESTHER DIPILATO was caused to be injured by
reason of the negligence, carelessness and want of proper care of the defendant(s), their
agents, servants and /or employees in that they caused the vehicle in which plaintiff was a
passenger to collide with a motor vehicle bearing registration number CPH3411 NY State
owned by defendant S J FUEL CO., INC. and operated by defendant ANDREW
SCIBELLI with pennission and consent of the owner and/or within the scope of his
employment.
40. That the said incident and resulting injuries to the plaintiff were caused
through no fault of her own but were wholly by reason of the negligence of the
defendants, their agents, servants and/or employees in its ownership, maintenance,
operation and control of the aforesaid premises, in that they negligently and carelessly
suffered, allowed and pennitted the aforesaid trees with overhanging
branches/shrubbery/hedges to obscure the aforementioned stop sign and/or traffic control
device and to remain in an unsafe, dangerous and hazardous condition; in failing to
properly maintain and/or in improperly maintaining said trees with overhanging
branches/shrubbery/hedges; in causing said trees with overhanging
branches/shrubbery/hedges to obscure the aforementioned stop sign and/or traffic control
devices; in failing to prune said trees with overhanging branches/shrubbery/hedges and in
improperly pruning said trees with overhanging branches/shrubbery/hedges; in failing to
clear overhanging branches/shrubbery/hedges; in preventing and obstructing the view of
motorists using said stop sign and/or traffic control devices, and in particular the vehicle
in which plaintiff was a passenger; in creating a condition of impending danger; in
generally maintaining said premises, including trees with overhanging
branches/shrubbery/hedges and creating, causing, allowing and pennitting such a
dangerous defective and/or unsafe condition to exist so as to cause the incident herein
complained of; in creating and maintaining a menace, hazard, nuisance and trap thereat;
in failing to comply with the laws, statutes, ordinances and regulations made and
provided therefor.
41. That the said occurrence and resulting injuries of said plaintiff ESTHER
DIPILATO were caused through no fault of her own but were solely and wholly by
reason of the negligence of the aforementioned defendant, their agents, servants and/or
employees, as set forth above and by the nuisance maintained by the said defendant, as
herein set forth.
Id.
5. The above allegations of negligence comprise the sole cause of action asserted
against Defendant Sammmo in the present action. In its Verified Answer (a copy of which is
3
3 of 9
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
140 RECEIVED NYSCEF: 03/06/2023
01/08/2019
attached hereto as Exhibit "B"), Sammmo denies the allegations of negligence contained in the
Verified Complaint.
6. Defendant Sammmo hereby makes a motion for summary judgment based upon
the ground that Sammmo, as a matter of law, has no duty to the Plaintiff under the circumstances
alleged in the case.
PROCEDURAL HISTORY
7. Plaintiff had initially brought the present action in Kings County under the Index
No. 503889/2017 ("2017 Action"). The parties in the 2017 Action had answered the complaints,
brought in the New York City entities as third-party defendants, and had moved to transfer venue
to Richmond County, where the accident took place.
8. Oddly, on June 18, 2018, the Plaintiff in the 2017 Action commenced another
action in Kings County, for no apparent reason, against the same defendants, with nearly
identical allegations. The Index No. for that action was 512538/2018 ("2018 Action"). On July
17, 2018, Sammmo moved to dismiss the 2018 Action based upon the same ground as the
present motion. Plaintiff opposed that motion, and Sammmo served its reply papers.
9. On August 3, 2018, Sammmo cross-moved to consolidate the 2017 Action and the
2108 Action, transfer venue to Richmond County, and, if the Court did not transfer venue,
Sammmo asked that the Motion to Dismiss in the 2018 Action be treated as a motion for
summary judgment in the 2017 Action. Plaintiff opposed that cross-motion, which was fully
submitted.
10. On October 11, 2018, Plaintiff filed an omnibus motion in the 2017 Action
seeking, among other relief, leave to amend her complaint to include claims against the principal
4 of 9
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
140 RECEIVED NYSCEF: 03/06/2023
01/08/2019
of Sammmo and the landscaper. In their Affidavit in support of that motion, Plaintiff's counsel
stated as follows:
Despite a diligent search, your affiant was not able to locate any laws, codes, ordinances,
etc., that directly place the duty upon the landowner or vest responsibility with
municipalities regarding the defective condition of the overgrowth and stop sign.
"C."
See Affidavit in Support of Motion, at 16, a copy of which is annexed hereto as Exhibit
Defendant Sammmo opposed some of the relief sought by the Plaintiff in that motion, including
the motion to amend to include those other parties.
11. On October 29, 2018, Sammmo later separately cross-moved in the 2017 Action
for Summary Judgment, which motion had not been opposed yet by Plaintiff prior to the Court's
Orders discussed in the paragraph below.
12. On December 11, 2018, the Court, in Kings County, issued Orders consolidating
the 2018 Action into the 2017 Action and transferring the newly consolidated present action to
Richmond County. A copy of those two Orders and the Clerk's Certification of the Minutes with
the filed document list are annexed hereto as Exhibit "D
13. There currently is pending before this Court an action brought by a different
plaintiff involving the same motor vehicle accident and similar allegations against Sammmo.
Defendant Sammmo moved in that case for summary judgment on the same basis as the present
motion. That motion, made in the action entitled Andrew Scibelli v. City of New York, et al.,
151036/2017 (N.Y. Sup. Ct. Richmond Cty.) ("Related Scibelli Action"), is fully submitted and
the parties are awaiting a decision by this Court.
14. The aforementioned Motions to Dismiss and Cross Motion for Summary
Judgment, made by Sammmo in the 2018 Action and 2017 Action, respectively, were never
decided prior to the Court transferring the consolidated present action to Richmond County. The
5
5 of 9
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
140 RECEIVED NYSCEF: 03/06/2023
01/08/2019
Court in Kings County marked those motions as withdrawn when it transferred the cases to
"E."
Richmond County. See eFiled Documents Detail, annexed hereto as Exhibit Accordingly,
Defendant Sammmo re-makes the present motion for summary judgment.
ARGUMENT
PLAINTIFF'S COMPLAINT AGAINST PREMISES OWNER SAMMMO FOR NOT
PROPERLY MAINTAINING VEGETATION ON PROPERTY ADJACENT TO THE
PUBLIC ROADWAY MUST BE DISMISSED, AS A MATTER OF LAW,
BECAUSE NO SUCH DUTY EXISTS
15. The purpose of a summary judgment motion is to "expedite all civil cases by
law."
eliminating from the trial calendar that which can be properly resolved as a matter of
Andre v. Pomeroy, 35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974). In deciding
summary judgment motions, Courts are not obligated to seek out speculative issues for a jury to
decide, on the chance that a trial may disclose something that pretrial proceedings have not. Id.
Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions by counsel
are insufficient to defeat a motion for summary of judgment. Alvord & Swift v. Stuart M. Muller
Construction Co., 46 N.Y.2d 276, 385 N.E.2d 1238, 413 N.Y.S.2d 309 (1978).
16. Summary judgment should be granted without hesitation in actions where there is
no meritorious cause of action. See Lominitz v. Town of Woodbury, 81 A.D.2d 828, 829, 438
N.Y.S.2d 825 (2d Dept 1981). As the Court of Appeals held, in Zuckerman v. New York, 49
N.Y.2d 557, 562, 404 N.E.2d 718, 720, 427 N.Y.S.2d 595, 597 (1980):
6
6 of 9
FILED: RICHMOND COUNTY CLERK 03/06/2023
01/08/2019 06:48
10:54 PM
AM INDEX NO. 750035/2018
NYSCEF DOC. NO. 339
140 RECEIVED NYSCEF: 03/06/2023
Preview
FILED: RICHMOND COUNTY CLERK 03/06/2023 06:48 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 RECEIVED NYSCEF: 03/06/2023 Exhibit J FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 139 RECEIVED NYSCEF: 03/06/2023 01/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---- ------------------------- ------X ESTHER DIPILATO, Index No.: 750035/2018 Plaintiff, NOTICE OF MOTION FOR SUMMARY JUDGMENT -against- ANDREW SCIBELLI, SJ FUEL CO. INC., ANTHONY DIPILATO, ALFREDO DOTTARIO JR. and SAMMMO, LLC Defendants. -----¬------------------------------------------------------X ANDREW SCIBELLI AND SJ FUEL CO. INC., Third Party Plaintiffs, -against- THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, AND THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Third Party Defendants. ------------¬----------------------------------- ----X PLEASE TAKE NOTICE, that upon the Affirmation of Karen C. Higgins. Esq., dated January 8, 2019, and the exhibits thereto, and all of the prior proceedings herein, Defendant Sammmo, LLC shall move this Court, before Part C-2 of the Supreme Court, Richmond County, located at 26 Central Avenue, Staten Island, New York, on February 13, 2019 at 9:30 a.m., or as soon thereafter as counsel can be heard, for an Order pursuant to CPLR 3212 granting Sammmo, LLC's motion for summary judgment dismissing with prejudice Plaintiff's Complaint against 1 1 of 4 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 139 RECEIVED NYSCEF: 03/06/2023 01/08/2019 Sammmo LLC, and for such other, further and different relief as the Court deems just and proper. Dated: Bellmore, New York January 8, 2019 Yours, etc. Karen C. Higgins, Esq. GO , BENES, LLP Attorneys for Defendant SAMMMO, LLC 2nd 1666 Newbridge Road, FlOOr Bellmore, New York 11710 (516) 512-6333 To: Robert J. Eisen, Esq. SUBIN ASSOCIATES, LLP Attorneys for Plaintiff ESTHER DIPILATO 150 - 23rd FlOOr Broadway New York, New York 10038 WINGET, SPADAFORA & SCHWARTZBERG, LLP Attorneys for Defendants Andrew Scibelli and S.J. Fuel Co., Inc. 45 Broadway, 19th Floor New York, New York 10096 Kelley A. Dunn Zachary W. Carter Corporation Counsel Attorneys for Third Party Defendants 86¹ 350 Jay Street, Floor Brooklyn, New York 11201 Alfred Dottario Jr. 20 Samantha Lane Staten Island, New York 10305 Anthony Dipilato 2 2 of 4 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 139 RECEIVED NYSCEF: 03/06/2023 01/08/2019 1110 Woodrow Road Staten Island, New York 10312 3 3 of 4 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 139 RECEIVED NYSCEF: 03/06/2023 01/08/2019 SUPREME COURT STATE OF NEW YORK COUNTY OF RICHMOND ---- -------------------------X ESTHER DIPILATO, Plaintiff, Index No. 750035 2018 -against- ANDREW SCIBELLI, SJ FUEL CO INC., ANTHONY bATO, ALFREDOpOTTARIO JR. and SAMMMO, LLC . Defendants. ______ ___.. X ANDREW SCIBELLI and SJ FUEL CO. INC., Third Party Plaintiffs, -against- THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, and THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION Third Party Defendants. ----------------------------- ------------------X NOTICE OF MOTION FOR SUMMARY JUDGMENT GOLD BENES LLP Attorneys for Defendant 1666 Newbridge Road Bellmore, New York 11710 (516) 512-6333 Fax: (516) 512-6334 4 of 4 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 140 RECEIVED NYSCEF: 03/06/2023 01/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ------- X ESTHER DIPILATO, Index No.: 750035/2018 Plaintiff, AFFIRMATION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT -against- ANDREW SCIBELLI, SJ FUEL CO. INC., ANTHONY DIPILATO, ALFREDO DOTTARIO JR. and SAMMMO, LLC Defendants. -- -----------X ANDREW SCIBELLI AND SJ FUEL CO. INC., Third Party Plaintiffs, -against- THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, AND THE NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, Third Party Defendants. X Karen C. Higgins, Esq., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following to be true, under the penalties of perjury: 1. I am an attorney associated with the law firm of GOLD BENES LLP, attorneys for the defendant SAMMMO, LLC ("S o"), and as such am fully familiar with the facts and circumstances herein. 2. I submit this Affirmation in support of Defendant Sammmo's Motion for Summary Judgment in the present case. Plaintiff asserts a cause of action for negligence against 1 1 of 9 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 140 RECEIVED NYSCEF: 03/06/2023 01/08/2019 defendant Sammmo for injuries she sustained in a motor vehicle accident in which Sammmo was neither a driver or a passenger in, or owner of, any of the vehicles involved. Rather, Plaintiff claims Sammmo breached a duty to her, a passenger in a car on a roadway, as an owner of the premises adjacent to the public roadway on which the vegetation allegedly blocked the stop sign. 3. No such duty exists in common law or under any applicable statute or ordinance. This precise issue has been resolved by the Appellate Division on numerous occasions and Plaintiff has all but conceded this issue. Accordingly, Sammmo is entitled to summary judgment dismissing Plaintiff's Complaint in this action. STATEMENT OF FACTS 4. On or about February 27, 2017, Plaintiff Esther Dipilato filed her Verified Complaint. In her Amended Verified Complaint (the relevant pleading in the present action), a "A," copy of which is attached hereto as Exhibit Plaintiff makes the following allegations, among others, against Sammmo: 30. That at all times herein mentioned, the defendant SAMMMO, LLC was the owner of the premises located at 105 Benton Avenue, Staten Island, New York, adjacent to a stop sign/traffic device. * * * 35. That at all the times herein mentioned, the defendant SAMMMO, LLC's property included trees with overhanging branches/shrubbery/hedges. 36. That at all the times herein mentioned, the defendant SAMMMO, LLC's property included trees with overhanging trees/shrubbery/hedges which obscured the aforementioned stop sign/traffic control device. 37. That at all the times hereinafter alleged, ESTHER DIPILATO, was a passenger in a motor vehicle bearing registration number GWV3117 NY State owned by defendant ANTHONY DIPILATO and operated by defendant ALFRED DOTTARIO JR, with permission and consent of the owner and/or within the scope of his employment. 38. That at all the times herein mentioned, it was the duty of the defendant(s), its agents, servants and/or employees to keep and maintain said premises, including the trees with overhanging branches/shrubbery/hedges which obscured the stop sign/traffic 2 2 of 9 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 140 RECEIVED NYSCEF: 03/06/2023 01/08/2019 control devices in a reasonable state of repair and good and safe condition, and not to suffer and permit said premises become unsafe and dangerous to pedestrians and/or motorists. 39. That on or about 9/1/2017, while plaintiff ESTHER DIPILATO was a passenger in a motor vehicle bearing registration number GWV3117 NY State upon the aforementioned roadway, plaintiff ESTHER DIPILATO was caused to be injured by reason of the negligence, carelessness and want of proper care of the defendant(s), their agents, servants and /or employees in that they caused the vehicle in which plaintiff was a passenger to collide with a motor vehicle bearing registration number CPH3411 NY State owned by defendant S J FUEL CO., INC. and operated by defendant ANDREW SCIBELLI with pennission and consent of the owner and/or within the scope of his employment. 40. That the said incident and resulting injuries to the plaintiff were caused through no fault of her own but were wholly by reason of the negligence of the defendants, their agents, servants and/or employees in its ownership, maintenance, operation and control of the aforesaid premises, in that they negligently and carelessly suffered, allowed and pennitted the aforesaid trees with overhanging branches/shrubbery/hedges to obscure the aforementioned stop sign and/or traffic control device and to remain in an unsafe, dangerous and hazardous condition; in failing to properly maintain and/or in improperly maintaining said trees with overhanging branches/shrubbery/hedges; in causing said trees with overhanging branches/shrubbery/hedges to obscure the aforementioned stop sign and/or traffic control devices; in failing to prune said trees with overhanging branches/shrubbery/hedges and in improperly pruning said trees with overhanging branches/shrubbery/hedges; in failing to clear overhanging branches/shrubbery/hedges; in preventing and obstructing the view of motorists using said stop sign and/or traffic control devices, and in particular the vehicle in which plaintiff was a passenger; in creating a condition of impending danger; in generally maintaining said premises, including trees with overhanging branches/shrubbery/hedges and creating, causing, allowing and pennitting such a dangerous defective and/or unsafe condition to exist so as to cause the incident herein complained of; in creating and maintaining a menace, hazard, nuisance and trap thereat; in failing to comply with the laws, statutes, ordinances and regulations made and provided therefor. 41. That the said occurrence and resulting injuries of said plaintiff ESTHER DIPILATO were caused through no fault of her own but were solely and wholly by reason of the negligence of the aforementioned defendant, their agents, servants and/or employees, as set forth above and by the nuisance maintained by the said defendant, as herein set forth. Id. 5. The above allegations of negligence comprise the sole cause of action asserted against Defendant Sammmo in the present action. In its Verified Answer (a copy of which is 3 3 of 9 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 140 RECEIVED NYSCEF: 03/06/2023 01/08/2019 attached hereto as Exhibit "B"), Sammmo denies the allegations of negligence contained in the Verified Complaint. 6. Defendant Sammmo hereby makes a motion for summary judgment based upon the ground that Sammmo, as a matter of law, has no duty to the Plaintiff under the circumstances alleged in the case. PROCEDURAL HISTORY 7. Plaintiff had initially brought the present action in Kings County under the Index No. 503889/2017 ("2017 Action"). The parties in the 2017 Action had answered the complaints, brought in the New York City entities as third-party defendants, and had moved to transfer venue to Richmond County, where the accident took place. 8. Oddly, on June 18, 2018, the Plaintiff in the 2017 Action commenced another action in Kings County, for no apparent reason, against the same defendants, with nearly identical allegations. The Index No. for that action was 512538/2018 ("2018 Action"). On July 17, 2018, Sammmo moved to dismiss the 2018 Action based upon the same ground as the present motion. Plaintiff opposed that motion, and Sammmo served its reply papers. 9. On August 3, 2018, Sammmo cross-moved to consolidate the 2017 Action and the 2108 Action, transfer venue to Richmond County, and, if the Court did not transfer venue, Sammmo asked that the Motion to Dismiss in the 2018 Action be treated as a motion for summary judgment in the 2017 Action. Plaintiff opposed that cross-motion, which was fully submitted. 10. On October 11, 2018, Plaintiff filed an omnibus motion in the 2017 Action seeking, among other relief, leave to amend her complaint to include claims against the principal 4 of 9 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 140 RECEIVED NYSCEF: 03/06/2023 01/08/2019 of Sammmo and the landscaper. In their Affidavit in support of that motion, Plaintiff's counsel stated as follows: Despite a diligent search, your affiant was not able to locate any laws, codes, ordinances, etc., that directly place the duty upon the landowner or vest responsibility with municipalities regarding the defective condition of the overgrowth and stop sign. "C." See Affidavit in Support of Motion, at 16, a copy of which is annexed hereto as Exhibit Defendant Sammmo opposed some of the relief sought by the Plaintiff in that motion, including the motion to amend to include those other parties. 11. On October 29, 2018, Sammmo later separately cross-moved in the 2017 Action for Summary Judgment, which motion had not been opposed yet by Plaintiff prior to the Court's Orders discussed in the paragraph below. 12. On December 11, 2018, the Court, in Kings County, issued Orders consolidating the 2018 Action into the 2017 Action and transferring the newly consolidated present action to Richmond County. A copy of those two Orders and the Clerk's Certification of the Minutes with the filed document list are annexed hereto as Exhibit "D 13. There currently is pending before this Court an action brought by a different plaintiff involving the same motor vehicle accident and similar allegations against Sammmo. Defendant Sammmo moved in that case for summary judgment on the same basis as the present motion. That motion, made in the action entitled Andrew Scibelli v. City of New York, et al., 151036/2017 (N.Y. Sup. Ct. Richmond Cty.) ("Related Scibelli Action"), is fully submitted and the parties are awaiting a decision by this Court. 14. The aforementioned Motions to Dismiss and Cross Motion for Summary Judgment, made by Sammmo in the 2018 Action and 2017 Action, respectively, were never decided prior to the Court transferring the consolidated present action to Richmond County. The 5 5 of 9 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 140 RECEIVED NYSCEF: 03/06/2023 01/08/2019 Court in Kings County marked those motions as withdrawn when it transferred the cases to "E." Richmond County. See eFiled Documents Detail, annexed hereto as Exhibit Accordingly, Defendant Sammmo re-makes the present motion for summary judgment. ARGUMENT PLAINTIFF'S COMPLAINT AGAINST PREMISES OWNER SAMMMO FOR NOT PROPERLY MAINTAINING VEGETATION ON PROPERTY ADJACENT TO THE PUBLIC ROADWAY MUST BE DISMISSED, AS A MATTER OF LAW, BECAUSE NO SUCH DUTY EXISTS 15. The purpose of a summary judgment motion is to "expedite all civil cases by law." eliminating from the trial calendar that which can be properly resolved as a matter of Andre v. Pomeroy, 35 N.Y.2d 361, 364, 320 N.E.2d 853, 362 N.Y.S.2d 131 (1974). In deciding summary judgment motions, Courts are not obligated to seek out speculative issues for a jury to decide, on the chance that a trial may disclose something that pretrial proceedings have not. Id. Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions by counsel are insufficient to defeat a motion for summary of judgment. Alvord & Swift v. Stuart M. Muller Construction Co., 46 N.Y.2d 276, 385 N.E.2d 1238, 413 N.Y.S.2d 309 (1978). 16. Summary judgment should be granted without hesitation in actions where there is no meritorious cause of action. See Lominitz v. Town of Woodbury, 81 A.D.2d 828, 829, 438 N.Y.S.2d 825 (2d Dept 1981). As the Court of Appeals held, in Zuckerman v. New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 720, 427 N.Y.S.2d 595, 597 (1980): 6 6 of 9 FILED: RICHMOND COUNTY CLERK 03/06/2023 01/08/2019 06:48 10:54 PM AM INDEX NO. 750035/2018 NYSCEF DOC. NO. 339 140 RECEIVED NYSCEF: 03/06/2023