Preview
FILED: DUTCHESS COUNTY CLERK 12/14/2023 10:47 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 12/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
________________________________________Ç
KENNETH GAROFOLO and JENNIFER GAROFOLO, Index No. 2015-52210
Plaintiffs
-against- AFFIRMATION IN
OPPOSITION
DEVIN J. CARPENTER, PREFERRED GROUP OF
MANHATTAN, INC., CONSOLIDATED RAIL
CORPORATION and CSX TRANSPORTATION, INC.,
Defendants.
-------------------------------------------X
DEVIN J. CARPENTER,
Third-Party Plaintiff,
-against-
THE LAST TRAIN STOP, INC., THE LAST TRAIN STOP,
INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE,
P.O.K. TRAIN STATION, LLC, P.O.K. TRAIN STATION,
LLC d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE
and MAHONEY'S IRISH PUB & STEAKHOUSE,
Third-Party Defendant's.
__________________________________________Ç
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ANDREW W. HUMPHREYS, ESQ., an attorney duly admitted to practice law
before the courts of the State of New York hereby affirms the following to be true under the
penalties of perjury:
1. I am associated with the firm of JONNA SPILBOR LAW, the attorneys for the
Plaintiffs, KENNETH GAROFOLO and JENNIFER GAROFOLO, in the above-captioned matter.
As such, I am fully familiar with the facts and circumstances surrounding this matter.
2. The Defendant and Third-Party Defendant have brought a motion for summary
judgment in this action alleging that the Plaintiff failed to commence the action within the statute
injury."
of limitations and, in part, does not have a "grave Respectfully, the motions ought to be
denied because of the following: 1) Pursuant to CPLR Sec. 215(8), the action was commenced
within the year after the termination of the criminal action against the Defendant; 2) the Defendant
and Third-Party Defendant failed to meet his burden in making out a prima facie case for summary
judgment as a matter of law by failing to submit medical proof and/or address each of the
injury"
allegations in the bill of particulars regarding the "grave suffered by the Plaintiff, and/or,
physicians'
alternatively, it is the Plaintiff's treating opinion that the Plaintiff suffered permanent
injury. Further, there are issues of fact concerning the contribution to the injury herein, as Third-
Party Defendant served Defendant to the point of intoxication on the night of the incident.
LEGAL ARGUMENT
3. Summary Judgment is a severe remedy that must only be awarded where there is
no triable issue of fact and the Court may render a decision as a matter of law. Andre v. Pomeroy,
35 N.Y. 2d 361, 362 N.Y.S.2d 131 (1974); Van Noy v. Corinth Central School District, 111 A.D.2d
(3"1
592, 489 N.Y.S.2d 658 Dept. 1985). "The proponent of a summary judgment motion must
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NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 12/14/2023
make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient
fact."
evidence to demonstrate the absence of any material issues of Alvarez v. Prospect Hospital,
68 N.Y.2d 320, 324-325, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986).
4. In deciding a motion for summary judgment, any inferences must be made in the
light most favorable to the non-movant. Rudnitsky v. Robbins, 191 A.D.2d 488, 594 N.Y.S.2d 354
(2nd (2nd
Dept. 1993); Schraub v. Hempstead, 167 A.D.2d 458, 561 N.Y.S.2d 922 99
(2nd
Hantz v. Fishman, 155 A.D.2d 415, 547 N.Y.S.2d 350 9 9
5. At the outset, the motions ought to be denied as the action was commenced timely
pursuant to CPLR 215(8)(a), as it was commenced within the tolling provisions. Attached as
Exhibit 1 is the certification from the criminal court that the disposition dates for the criminal
charges against the defendant clearly puts the commencement of the action within the tolling
provisions of CPLR Sec. 215(8)(a), which would have allowed the action to have been commenced
on or before December 1, 2017, as the charges were disposed of November 19, 2015, and
December 1, 2016, based upon Exhibit 1.
6. Further, the motions ought to be denied as to the Third-Party Defendants failed to
"tender of evidentiary proof in admissible form", in that, the records submitted failed to include
any medical proof addressing any of the allegations of injury, including the Plaintiff's traumatic
brain injury as set forth in the bill of particulars and supplemental bill of particulars.(Exhibit 2)
Since the Third-Party Defendants failed to meet its initial burden in proving that there was not a
"grave injury", the application should be denied. (See Zuckerman v. City of New York, 49 NY2d
557, 427 NYS 2d 595 (1980); Hambsch v New York City Transit Authority, 63 NY2d 723 (1984).
7. Even though the Third-Party Defendant failed to submit proof of a "grave injury",
injury"
Plaintiff submits the medical records of his treating physicians establishing a "grave under
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the statute from Dr. Azher, his neurologist (Exhibit 3), Dr. Victoria Loudin, PhD (Exhibit 4), and
Victor Zelek, PhD(Exhibit 5) Each of these physicians have diagnosed the Plaintiff as having a
traumatic brain injury, which resulted in the Plaintiff receiving Social Security Disability to date.
(See Exhibit 6, page ) For example, Dr. Loudin's opinion was that there were casually-related
neurocognitive deficits and psychological symptoms and that his level of disability was total.
There is substantial treatment documenting Plaintiff's traumatic brain injury, and that the Plaintiff
employed."
remains "disabled from earning full wages at the work at which the employee was last
Rubeis v. Aqua Club, Inc 3 N.Y. 408, 788 N.Y.S. 2d 292 (2004). As the Plaintiff's extensive
treatment documents, he has not been able to return to full time employment since the occurrence
on November 22, 2014. As the Plaintiff testified, the seasonal employment was very limited and
only part-time. If this Honorable Court finds the recent part-time employment persuasive as to the
holding in Rubeis v. Aqua Club, Inc 3 N.Y. 408, 788 N.Y.S. 2d 292 (2004), as to the rule for
"unemployability in any capacity", it is respectfully requested that the Court alternatively find that
the Plaintiff suffered a "grave injury", which lasted from the date of the incident up until the recent
part-time employment. Again, Third-Party Defendant failed to submit any medical testimony that
injury"
the Plaintiff did not suffer a "grave under the statute.
8. With respect to the claim that there are no issues of fact concerning indemnification
intoxicated"
and/or contribution, notably the Defendant testified that he was "highly at the bar of
Third-Party Defendant and was continued to being served. Therefore, there is an issue of fact as
to whether the Third-Party Defendant contributed to the occurrence herein by serving an
intoxicated patron herein. (Exhibit 7, pages 37 to 42). Therefore, the motion for summary judgment
of the Defendants, respectfully, must be denied.
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WHEREFORE, it is respectfully requested that the Court deny Defendant and Third-Party
Defendant's'
motions for summary judgment, permit this matter to proceed to trial on the merits,
and grant such other and further relief as this Court deems just and proper.
Dated: Poughkeepsie, New York
December 13, 2023
6 ndrew Humphreýs
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Preview
FILED: DUTCHESS COUNTY CLERK 12/14/2023 10:47 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 12/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ________________________________________Ç KENNETH GAROFOLO and JENNIFER GAROFOLO, Index No. 2015-52210 Plaintiffs -against- AFFIRMATION IN OPPOSITION DEVIN J. CARPENTER, PREFERRED GROUP OF MANHATTAN, INC., CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC., Defendants. -------------------------------------------X DEVIN J. CARPENTER, Third-Party Plaintiff, -against- THE LAST TRAIN STOP, INC., THE LAST TRAIN STOP, INC. d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE, P.O.K. TRAIN STATION, LLC, P.O.K. TRAIN STATION, LLC d/b/a MAHONEY'S IRISH PUB & STEAKHOUSE and MAHONEY'S IRISH PUB & STEAKHOUSE, Third-Party Defendant's. __________________________________________Ç 1 1 of 5 FILED: DUTCHESS COUNTY CLERK 12/14/2023 10:47 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 12/14/2023 ANDREW W. HUMPHREYS, ESQ., an attorney duly admitted to practice law before the courts of the State of New York hereby affirms the following to be true under the penalties of perjury: 1. I am associated with the firm of JONNA SPILBOR LAW, the attorneys for the Plaintiffs, KENNETH GAROFOLO and JENNIFER GAROFOLO, in the above-captioned matter. As such, I am fully familiar with the facts and circumstances surrounding this matter. 2. The Defendant and Third-Party Defendant have brought a motion for summary judgment in this action alleging that the Plaintiff failed to commence the action within the statute injury." of limitations and, in part, does not have a "grave Respectfully, the motions ought to be denied because of the following: 1) Pursuant to CPLR Sec. 215(8), the action was commenced within the year after the termination of the criminal action against the Defendant; 2) the Defendant and Third-Party Defendant failed to meet his burden in making out a prima facie case for summary judgment as a matter of law by failing to submit medical proof and/or address each of the injury" allegations in the bill of particulars regarding the "grave suffered by the Plaintiff, and/or, physicians' alternatively, it is the Plaintiff's treating opinion that the Plaintiff suffered permanent injury. Further, there are issues of fact concerning the contribution to the injury herein, as Third- Party Defendant served Defendant to the point of intoxication on the night of the incident. LEGAL ARGUMENT 3. Summary Judgment is a severe remedy that must only be awarded where there is no triable issue of fact and the Court may render a decision as a matter of law. Andre v. Pomeroy, 35 N.Y. 2d 361, 362 N.Y.S.2d 131 (1974); Van Noy v. Corinth Central School District, 111 A.D.2d (3"1 592, 489 N.Y.S.2d 658 Dept. 1985). "The proponent of a summary judgment motion must 2 2 of 5 FILED: DUTCHESS COUNTY CLERK 12/14/2023 10:47 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 12/14/2023 make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient fact." evidence to demonstrate the absence of any material issues of Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324-325, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986). 4. In deciding a motion for summary judgment, any inferences must be made in the light most favorable to the non-movant. Rudnitsky v. Robbins, 191 A.D.2d 488, 594 N.Y.S.2d 354 (2nd (2nd Dept. 1993); Schraub v. Hempstead, 167 A.D.2d 458, 561 N.Y.S.2d 922 99 (2nd Hantz v. Fishman, 155 A.D.2d 415, 547 N.Y.S.2d 350 9 9 5. At the outset, the motions ought to be denied as the action was commenced timely pursuant to CPLR 215(8)(a), as it was commenced within the tolling provisions. Attached as Exhibit 1 is the certification from the criminal court that the disposition dates for the criminal charges against the defendant clearly puts the commencement of the action within the tolling provisions of CPLR Sec. 215(8)(a), which would have allowed the action to have been commenced on or before December 1, 2017, as the charges were disposed of November 19, 2015, and December 1, 2016, based upon Exhibit 1. 6. Further, the motions ought to be denied as to the Third-Party Defendants failed to "tender of evidentiary proof in admissible form", in that, the records submitted failed to include any medical proof addressing any of the allegations of injury, including the Plaintiff's traumatic brain injury as set forth in the bill of particulars and supplemental bill of particulars.(Exhibit 2) Since the Third-Party Defendants failed to meet its initial burden in proving that there was not a "grave injury", the application should be denied. (See Zuckerman v. City of New York, 49 NY2d 557, 427 NYS 2d 595 (1980); Hambsch v New York City Transit Authority, 63 NY2d 723 (1984). 7. Even though the Third-Party Defendant failed to submit proof of a "grave injury", injury" Plaintiff submits the medical records of his treating physicians establishing a "grave under 3 3 of 5 FILED: DUTCHESS COUNTY CLERK 12/14/2023 10:47 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 12/14/2023 the statute from Dr. Azher, his neurologist (Exhibit 3), Dr. Victoria Loudin, PhD (Exhibit 4), and Victor Zelek, PhD(Exhibit 5) Each of these physicians have diagnosed the Plaintiff as having a traumatic brain injury, which resulted in the Plaintiff receiving Social Security Disability to date. (See Exhibit 6, page ) For example, Dr. Loudin's opinion was that there were casually-related neurocognitive deficits and psychological symptoms and that his level of disability was total. There is substantial treatment documenting Plaintiff's traumatic brain injury, and that the Plaintiff employed." remains "disabled from earning full wages at the work at which the employee was last Rubeis v. Aqua Club, Inc 3 N.Y. 408, 788 N.Y.S. 2d 292 (2004). As the Plaintiff's extensive treatment documents, he has not been able to return to full time employment since the occurrence on November 22, 2014. As the Plaintiff testified, the seasonal employment was very limited and only part-time. If this Honorable Court finds the recent part-time employment persuasive as to the holding in Rubeis v. Aqua Club, Inc 3 N.Y. 408, 788 N.Y.S. 2d 292 (2004), as to the rule for "unemployability in any capacity", it is respectfully requested that the Court alternatively find that the Plaintiff suffered a "grave injury", which lasted from the date of the incident up until the recent part-time employment. Again, Third-Party Defendant failed to submit any medical testimony that injury" the Plaintiff did not suffer a "grave under the statute. 8. With respect to the claim that there are no issues of fact concerning indemnification intoxicated" and/or contribution, notably the Defendant testified that he was "highly at the bar of Third-Party Defendant and was continued to being served. Therefore, there is an issue of fact as to whether the Third-Party Defendant contributed to the occurrence herein by serving an intoxicated patron herein. (Exhibit 7, pages 37 to 42). Therefore, the motion for summary judgment of the Defendants, respectfully, must be denied. 4 4 of 5 FILED: DUTCHESS COUNTY CLERK 12/14/2023 10:47 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 12/14/2023 WHEREFORE, it is respectfully requested that the Court deny Defendant and Third-Party Defendant's' motions for summary judgment, permit this matter to proceed to trial on the merits, and grant such other and further relief as this Court deems just and proper. Dated: Poughkeepsie, New York December 13, 2023 6 ndrew Humphreýs 5 5 of 5