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FILED: NASSAU COUNTY CLERK 01/12/2024 10:08 AM INDEX NO. 612415/2023
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024
EXHIBIT A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU Index No.:
------------------------------------------------X Date Filed:
JOSEPH MONTILLI,
Plaintiff designates Nassau
Plaintiff, 'County as the place of venue
The basis of Venue:
Plane of Occurrence
SUMMONS
COUNTY OF NASSAU, INCORPORATED VILLAGE
OF CEDARHURST, TOWN OF HEMPSTEAD,
and NATIONAL GRID USA SERVICE CO., INC.
Defendants.
-------------------------------------------Ç
TO THE ABOVE-NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED to answer the Complaint in this action, and to
serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a
Notice of Appearance on the plaintiff's attorneys within twenty (20) days after the service of this
Summons, exclusive of the day of service, where service is made by delivery upon you
personally within this state, or, within thirty (30) days after completion of service where service
is made in any other manner. In case of your failure to appear or answer, judgment will be taken
against you by default for the relief demanded in the Complaint.
Dated: Uniondale, New York
June 15, 2023
By: Jennife M. Ahlfeld, Esq.
THE LICATESI LAW GROUP, LLP
Attorneys for Plaintiff
423 RXR Plaza, East Tower
Uniondale, New York 11556
(516) 227-2662
PLEASE PROMPTLY FORWARD THIS DOCUMENT TO YOUR INSURANCE
COMPANY
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P
DEFENDANTS'
ADDRESSES:
County ofNassau
Office of the Nassau County Attorney
One West Street
Mineola, New York 11501
Incorporated Village of Cedarhurst
200 Cedarhurst Avenue
Cedarhurst, New York 11516
Town of Hempstead
1 Washington Street
Hempstead, New York 11550
NATIONAL GRID USA SERVICE CO. INC.
C/O Secretary of State
80 State Street
Albany NY 12207
.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
_______------------..-----------------------Ç
JOSEPH MONTILLI,
Plaintiff, VERIFIED COMPLAINT
- against - Index No.:
COUNTY OF NASSAU, INCORPORATED VILLAGE
OF CEDARHURST, TOWN OF HEMPSTEAD,
and NATIONAL GRID USA SERVICE CO., INC.
Defendants.
--.._________-----------..------_____---------Ç
Plaintiff, JOSEPH MONTILLI, by his attorneys, THE LICATESI LAW GROUP, LLP
complaining of the Defendants, herein, respectfully alleges, upon information and belief, as follows:
1. That at all times hereinafter mentioned, the Plaintiff, JOSEPH MONTILLI was and still is a
resident of the County of Nassau, State of New York.
2. That at all times herein relevant, defendant, COUNTY OF NASSAU, is a municipal
corporation duly organized and existing under and by virtue of the laws of the State of New York.
3. That at all times herein relevant, defendant, INCORPORATED VILLAGE OF
CEDARHURST, is a municipal corporation duly organized and existing under and by virtue of the
laws of the State of New York.
. 4. That at all times herein relevant, defendant, TOWN OF HEMPSTEAD, is a
municipal corporation duly organized and existing under and by virtue of the laws of the State of
New York.
5. That at all times hereinafter mentioned, the defendant, NATIONAL GRID USA SERVICE
CO. INC. was and still is a domestic business corporation duly organized and existing under the laws
of the State of New York.
6. That at all times hereinafter mentioned, the defendant, NATIONAL GRID USA SERVICE
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CO. INC. was and still is a foreign corporation duly organized and existing under the laws of the
State of New York.
7. That on or about January 18, 2023, and within ninety (90) days after the date of the
accident, and more than thirty (30) days prior to the commencement of this action, plaintiff duly
presented, served and filed a Notice of Claim with the Defendants, INCORPORATED VILLAGE
OF CEDARHURST, TOWN OF HEMPSTEAD, COUNTY OF NASSAU and NATIONAL GRID
USA SERVICE CO. INC for adjustment of the damages sustained by the plaintiff herein, upon
which this action is based, and thereafter more than thirty days passed, and said defendant has failed
or refuses to make an adjustment of said claim, and said claim remains unpaid or unadjusted,
although plaintiff has duly demanded that same be adjusted and paid.
8. That prior to the commencement of this action, Plaintiff was ready, willing and ready to
appear at any designated hearings.
9. That prior to the commencement of this action, plaintiff duly complied with all the
conditions precedent to the bringing of this action including appearing for a 50-H Hearing on or
about May 24, 2023, at the request of Defendant, COUNTY OF NASSAU.
10. That at all times herein relevant, the road between Broadway Avenue at and/or near
Grove Avenue, County ofNassau, State ofNew York, was and still is a public roadway in use by the
residents of the County of Nassau and others.
11. That on January 11, 2023, at approximately 6:00 PM. while Plaintiff was proceeding
westbound on Broadway and Grove Avenue in Cedarhurst, New York, Plaintiff's vehicle came into
contact with an unsecured utility cover which became dislodged and opened upon contact
underneath his car.
12. As a result of the foregoing, Plaintiff was caused to be injured as a result of a dangerous,
hazardous, defective, unsecured, broken, misaligned and/or unsafe condition then and there existing
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on the roadway. (See annexed and incorporated herein 4 color photographs taken after
immediately
the accident, and 3 color photographs taken on 13, 2023, the presence of
January demonstrating
National Grid).
13. That upon information and belief, at all times herein relevant, it was the of the
duty
defendant COUNTY OF NASSAU, its agents, servants and/or employees to properly maintain its
roadways located between Broadway and Grove Avenue in the County of Nassau, City of
Cedarhurst, State of New York, and to keep said roadways in a reasonably safe condition.
14. That upon information and belief, at all times herein relevant, it was the duty of the
defendant COUNTY OF NASSAU, its agents, servants and/or employees to ensure that utility
covers located on its roadways, including between Broadway and Grove Avenue in the County of
Nassau, City of Cedarhurst, and State of New York, were not left unsecured.
15. That upon information and belief, at all times herein relevant, defendant, COUNTY OF
NASSAU, owned, maintained, managed, operated, controlled and/or repaired said roadway.
16. That upon information and belief, at all times herein relevant, defendant, COUNTY OF
NASSAU, owned, maintained, managed, operated, controlled and/or repaired said utility cover.
17. That at all times herein relevant, the defendant COUNTY OF NASSAU, its agents,
servants and/or employees, caused, created, permitted and/or allowed a dangerous, defective,
hazardous and unsafe condition of an unsecured utility cover to exist on its roadway.
18. That upon information and belief, at all times herein relevant, it was the duty of the
defendant INCORPORATED VILLAGE OF CEDARHURST, its agents, servants and/or employees
to properly maintain its roadways located between Broadway and Grove Avenue in the County of
Nassau, State of New York, and to keep said roadways in a reasonably safe condition.
19. That upon information and belief, at all times herein relevant, it was the duty of the
defendant INCORPORATED VILLAGE OF CEDARHURST, its agents, servants and/or employees
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to ensure that covers located on its roadways, between Broadway and Grove
utility including
Avenue in the County of Nassau, and State of New York, were not left unsecured.
20. That upon information and belief, at all times herein relevant, defendant,
INCORPORATED VILLAGE OF CEDARHURST, owned, maintained, managed, operated,
controlled and/or repaired said roadway.
21. That upon information and belief, at all times herein relevant, defendant,
INCORPORATED VILLAGE OF CEDARHURST, owned, maintained, managed, operated,
controlled and/or repaired said utility cover.
22. That at all times herein relevant, the defendant INCORPORATED VILLAGE OF
CEDARHURST, its agents, servants and/or employees, caused, created, permitted and/or allowed a
dangerous, defective, hazardous and unsafe condition of an unsecured utility cover to exist on its
roadway.
23. That upon information and belief, at all times herein relevant, it was the duty of the
defendant TOWN OF HEMPSTEAD, its agents, servants and/or employees to properly maintain its
roadways located between Broadway and Grove Avenue in the County of Nassau, State of New
York, and to keep said roadways in a reasonably safe condition.
24. That upon information and belief, at all times herein relevant, it was the duty of the
defendant TOWN OF HEMPSTEAD, its agents, servants and/or employees to ensure that utility
covers located on its roadways, including between Broadway and Grove Avenue in the County of
Nassau, City of Cedarhurst, and State of New York, were not left unsecured.
25. That upon information and belief, at all times herein relevant, defendant, TOWN OF
HEMPSTEAD, owned, maintained, managed, operated, controlled and/or repaired said roadway.
26. That upon information and belief, at all times herein relevant, defendant, TOWN OF
HEMPSTEAD, owned, maintained, managed, operated, controlled and/or repaired said utility cover.
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27. That at all times herein relevant, the defendant TOWN OF HEMPSTEAD, its agents,
servants and/or employees, caused, created, permitted and/or allowed a dangerous, defective,
hazardous and unsafe condition of an unsecured utility cover to exist on its roadway.
28. That upon information and belief, at all times herein relevant, it was the duty of the
defendant NATIONAL GRID USA SERVICE CO. INC, its agents, servants and/or employees to
properly maintain its roadways located between Broadway and Grove Avenue in the County of
Nassau, City of Cedarhurst, State of New York, and to keep said roadways in a reasonably safe
condition.
29. That upon information and belief, at all times herein relevant, it was the duty of the
defendant NATIONAL GRID USA SERVICE CO. INC, its agents, servants and/or employees to
ensure that utility covers located on its roadways, including between Broadway and Grove Avenue
in the County of Nassau, City of Cedarhurst, and State of New York, were not left unsecured.
30. That upon information and belief, at all times herein relevant, defendant, NATIONAL
GRID USA SERVICE CO. INC, owned, maintained, managed, operated, controlled and/or repaired
said roadway.
31. That upon information and belief, at all times herein relevant, defendant, NATIONAL
GRID USA SERVICE CO. INC, owned, maintained, managed, operated, controlled and/or repaired
said utility cover.
32. That at all times herein relevant, the defendant NATIONAL GRID USA SERVICE CO.
INC, its agents, servants and/or employees, caused, created, permitted and/or allowed a dangerous,
defective, hazardous and unsafe condition of an unsecured utility cover to exist on its roadway.
33. That as a result of the foregoing, Plaintiff, sustained severe and serious personal injuries
and has otherwise been damaged thereby.
34. This accident occurred as a result of the negligence, carelessness and recklessness of
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the respondents, COUNTY OF NASSAU and/or INCORPORATED VILLAGE OF
CEDARHURST and/or TOWN OF HEMPSTEAD, and/or NATIONAL GRID USA SERVICE
CO. INC., its agents, servants and/or employees, in their ownership, operation, maintenance,
"utility"
management, repair and control of the roadway and cover at said location as delineated
herein and depicted in the annexed photographs.
35. That by reason of the foregoing, plaintiff was caused to sustain damages in an amount
which exceeds the jurisdictional limitation of all lower Courts which would otherwise have
jurisdiction over this action.
WHEREFORE, Plaintiff demands judgement in his favor against the Defendants, jointly
and/or severally, in a sum which exceeds thejurisdictional limits of all inferior Courts together with
costs and disbursements of this action.
Dated: Uniondale, New York
June 15, 2023
By: Jennif M. Ahlfeld, Esq.
THE LICATESI LAW GROUP
Attorneys for Plaintiff
423 RXR Plaza, East Tower
Uniondale, New York 11556
(516) 227-2662
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PLAINTIFF'S VERIFICATION
STATE OF NEW YORK )
)ss.:
COUNTY OF NASSAU )
JOSEPH MONTILLI, being duly sworn, deposes and says:
I have read the annexed Complaint and know the contents thereofand the same is true
to my knowledge, except those matters therein which are stated to be alleged on information and
belief, and as to those matters, I believe them to be true.
JOS
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Ruling
MARIA LUZ NIEVES VS KEVIN GEORGE AZIZ RIAD, ET AL.
Jul 10, 2024 |
20STCV08423
Case Number:
20STCV08423
Hearing Date:
July 10, 2024
Dept:
M
LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka
Wednesday, July 10, 2024
Department M
Calendar No. 16
PROCEEDINGS
Maria Luz Nieves, et al. v. Kevin George Aziz Riad, et al.
20STCV08423
1.
K&K Limousine Services, Inc., et al.s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
TENTATIVE RULING
K&K Limousine Services, Inc.s Motion for Summary Judgment is granted.
KMK Properties, LLC (KMK) and AVA Mina Properties, LLCs (AVA) Motion for Summary Judgment, or in the Alternative, Summary Adjudication is deemed moot. These Defendants were dismissed on June 28, 2024.
Background
Plaintiffs filed their Complaint on February 28, 2020. Plaintiffs First Amended Complaint was filed on June 11, 2020. Plaintiffs allege the following facts. Plaintiffs decedent was killed in an automobile accident. Defendants were operating a 2016 Tesla Model S which purportedly suffered from defects. Plaintiffs allege the following causes of action: 1) Wrongful Death-General Negligence 2) Wrongful Death-Negligent Hiring, Training, and Supervision 3) Negligent Entrustment of Motor Vehicle 4) Products Liability-Negligence 5) Products Liability- Design Defect 6) Products Liability- Manufacturing Defect 7) Products Liability- Failure to Warn 8) Negligence- Manufacturer or Supplier-Duty to Warn 9) Negligence- Recall/Retrofit.
Motion for Summary Judgment or Summary Adjudication
The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.
(
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.)
Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
(
Adler v. Manor Healthcare Corp
. (1992) 7 Cal. App. 4th 1110, 1119.)
On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.
(
Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal. App. 4th 1510, 1519.)
A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.
CCP § 437c(p)(2).
Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. CCP § 437c(p)(2).
If the plaintiff cannot do so, summary judgment should be granted.
Avivi v. Centro Medico Urgente Medical Center
(2008) 159 Cal. App. 4th 463, 467.
A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc., § 437c(p)(1).
When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.
(
Avivi
, 159 Cal.App.4th at 467; CCP § 437c(c).)
Defendants move this Court pursuant to Code of Civil Procedure Section 437c for entry of summary judgment, or alternatively summary adjudication, in Defendants favor and against Plaintiffs Maria Luz Nieves, individually and as a successor-in-interest of Maria Guadalupe Nieves, deceased; Lorena Ochoa individually and as successor in interest to Gilberto Lopez, Deceased; Ulises Alcazar through Guardian Ad Litem, Rosalia Lopez, individually, Hector Rafael Alcazar through Guardian Ad Litem, Rosalia Lopez, Marilee Cristina Alcazar through Guardian Ad Litem and Rosalia Lopez. Issues 1 to 3 seek summary adjudication of the first through third causes of action.
At the time of the accident, Defendant Kevin George Aziz Riad was driving a 2016 Tesla Model S.
Plaintiffs named as Defendants Kevin Riad, as well as the registered owners of the Tesla George Salib and K&K Limousine Services, Inc. (K&K Limousine).
Plaintiffs also named KMK and AVA Mina as Defendants. However, as mentioned above, these Defendants were dismissed.
To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.
Lueras v. BAC Home Loans Servicing, LP
(2013) 221 Cal.App.4th 49, 62.
Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. [Citation.] In cases involving negligent entrustment of a vehicle, liability is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver. [Citations.] Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner. [Citation]; accord, Rest.2nd Torts, § 308 [It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others].) [¶] California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [¶] A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver. (See Judicial Council of Cal., Civ. Jury Instns. (2010) CACI No. 426.) That same awareness underlies a claim for negligent entrustment. (See CACI No. 724.) In a typical case ... the two claims are functionally identical.
McKenna v. Beesley
(2021) 67 Cal.App.5th 552, 565567 (internal citations and quotations omitted).
The following statutory authority applies in this action: Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner. Veh. Code, § 17150.
Defendant K&K Limousine has met its initial burden to show that an essential element or elements of Plaintiffs causes of action cannot be established and/or that there is a complete defense to the causes of action. Plaintiffs have not met their burden to provide specific facts to show the existence of a triable issue of material fact as to the causes of action.
CCP § 437c(p)(2).
Plaintiffs failed to dispute any of the separate statement of facts submitted by Defendants. Most significantly, Plaintiffs did not dispute fact number 5 which stated that Defendant K&K Limousine did not give permission for Defendant Riad to operate the vehicle and that permission to operate the vehicle had only been granted by George Salib. Thus, Plaintiffs submitted no facts or evidence to support the proposition that K&K Limousine gave permission, express or implied, to operate the vehicle. With no evidence of permission, liability as the owner pursuant to Veh. Code § 17150 cannot be established. The Court notes that George Salib is not a moving party on this motion. In addition, Plaintiffs submitted no evidence that Riad was employed by K&K Limousine to support the theories of negligent entrustment and negligent hiring, training, and supervision.
Therefore, for the foregoing reasons, K&K Limousines Motion for Summary Judgment is granted.
Defendant is
ordered to give notice of this ruling.
Ruling
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS ABBIE L. LILL, ET AL.
Jul 10, 2024 |
23STLC01390
Case Number:
23STLC01390
Hearing Date:
July 10, 2024
Dept:
25
PROCEEDINGS
:
MOTION FOR AN ORDER SEEKING LEAVE OF THE COURT TO FILE A CROSS-COMPLAINT
MOVING PARTY
:
Defendant/Cross-Complainant Abbie L. Lill
RESP. PARTY
:
None
MOTION FOR LEAVE TO AMEND
(CCP § 473(a))
TENTATIVE RULING
:
Defendant/Cross-Complainant Abbie L. Lills request for leave of court to file an amended Cross-Complaint is CONTINUED TO ____ at _____ a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant Lill must file and serve supplemental papers addressing the issues discussed herein. Failure to do so may result in the Motion being placed off calendar or denied.
SERVICE
:
[
X
] Proof of Service Timely Filed (CRC, rule 3.1300)
OK
[
X
] Correct Address (CCP §§ 1013, 1013a)
OK
[
] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))
NO (location)
OPPOSITION
:
None filed as of July 5, 2024
[
] Late
[
X
] None
REPLY
:
None filed as of July 5, 2024
[
] Late
[
X
] None
ANALYSIS:
I.
Background
On February 24, 2023, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed an action against Defendants
Abbie L. Lill; Emily Salinas; Miguel Fuentes; Does I through V.
Defendant Lill filed an Answer on June 7, 2023.
Defendant Lill filed the instant Motion for an Order Seeking Leave of the Court to File a Cross-Complaint (the Motion) on June 14, 2024. No opposition has been filed.
II.
Legal Standard
Leave to amend is permitted under the Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is so strong that it is a rare case in which denial of leave to amend can be justified. . .. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only where no prejudice is shown to the adverse party . . .. [citation].
A different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown. [Citation]. (
Magpali v. Farmers Group (
1996) 48 Cal.App.4th 471, 487.)
A motion for leave to amend a pleading must also comply with the procedural requirements of
California Rules of Court,
Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).)
III.
Discussion
Defendant Lill seeks leave of court to file an amended Cross-Complaint seeking equitable indemnity and declaratory relief against Emily Salinas and Miguel Fuentes. (Mot., p. 3.)
The Motion, however, does not comply with all requirements of California Rules of Court, rule 3.1324. Specifically, Motion does not identify the pages and line numbers where allegations would be added, deleted, or modified. Defendant Lills counsels supporting declaration also does not state when he discovered the information, the effect, or why it is necessary.
As a final note, the Motion fails to provide a courthouse address.
Thus, the Notice is defective.
Thus, the hearing will be CONTINUED so that Defendant Lill may correct these errors.
IV.
Conclusion & Order
For the foregoing reasons, Defendant/Cross-Complainant Lills request for leave of court to file an amended Cross-Complaint is CONTINUED TO ____ at _____ a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant Lill must file and serve supplemental papers addressing the issues discussed herein.
Failure to do so may result in the Motion being placed off calendar or denied.
Moving party is ordered to give notice.
Ruling
ALICIA HUITRON, ET AL. VS IESHA CATHERINE GABRIEL
Jul 11, 2024 |
21STCV39173
Case Number:
21STCV39173
Hearing Date:
July 11, 2024
Dept:
B
HEARING DATE
:
Thurs., July 11, 2024
JUDGE
/DEPT
:
Moskowitz/Dept. B
CASE NAME
:
Alicia Huitron, et al. v. Iesha Catherine Gabriel
CASE NUMBER:
21STCV39173
COMPL. FILED
:
10-25-21
PROCEEDINGS
:
MOTION TO BE RELIEVED AS COUNSEL
MOVING PARTY
:
Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PC
RESP. PARTY
:
None
MOTION TO BE RELIEVED AS COUNSEL
(CCP § 284, CRC rule 3.162)
TENTATIVE RULING
:
Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PCs
Motion to Be Relieved as Counsel as to Plaintiff Melody Tejeda-Huitron is GRANTED.
After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, rule 3.1362(e).)
The Order on this Motion will not be effective until proof of service of a copy of the signed order on the client has been filed with the court. (
Ibid.
)
ANALYSIS:
I.
Background
On October 25, 2021, Plaintiffs Alicia Huitron (Huitron) and Melody Tejeda-Huitron (Tejeda-Huitron) (collectively Plaintiffs) filed an action against Defendant Iesha Catherine Gabriel (Gabriel) for motor vehicle and general negligence.
On May 22, 2024, Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PC (Jamsheed)
filed the instant Motion to be Relieved as Counsel (Motion) as to Plaintiff Melody Tejeda-Huitron.
On June 7, 2024, the matter was assigned to Judge Karen Moskowitz in Department B of the Van Nuys Courthouse East.
II.
Legal Standard
Code of Civil Procedure § 284 states that the attorney in an action&may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney&; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.
(Code Civ. Proc. § 284; CRC 3.1362.)
The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably.
(See
Mandell v. Superior
(1977) 67 Cal.App.3d 1, 4;
Lempert v. Superior Court
(2003) 112 Cal.App.4th 1161, 1173.)
In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court, Rule 3.1362.
The motion must be made using mandatory forms:
1.
Notice of Motion and Motion to be Relieved as Counsel directed to the client (MC-051);
2.
Declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship the reasons that the motion was brought (MC-052);
3.
Proposed Order (MC-053).
(
Ibid.
)
The forms must be timely filed and served on all parties who have appeared in the case.
(
Ibid.
)
If these documents are served on the client by mail, there must be a declaration stating either that the address where client was served is the current residence or business address of the client or the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.
(Cal. Rules of Court, rule 3.1362(d)(1).)
III.
Discussion
The Court finds that Counsel Jamsheed has properly filed a Notice of Motion and Motion (MC-051).
Counsel has also filed a Declaration in Support of the Motion (MC-052) stating that
There has been a breakdown in attorney-client communication such that continued representation is no longer feasible. We have been unable to have the client sign the substitution of attorney.
(MC-052
¶ 2.)
Counsel has confirmed within the past 30 days that the address is current through TLO.
(
Ibid.
at ¶ 3b(1)(d).)
Counsel has also filed a Proposed Order, Form MC-053.
All documents were served on Plaintiff via mail on May 22, 2024, at her last known address.
Defendant has not yet been served with the Summons and Complaint.
The Court finds that all procedural requirements have been satisfied and there is no showing
that withdrawal would cause injustice or undue delay in the proceedings.
Counsel Jamsheeds Motion to be Relieved as Counsel as to Plaintiff Melody Tejeda-Huitron is GRANTED.
IV.
Conclusion & Order
For the foregoing reasons,
Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PCs
Motion to Be Relieved as Counsel as to Plaintiff Melody Tejeda-Huitron is GRANTED.
After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, rule 3.1362(e).)
The Order on this Motion will not be effective until proof of service of a copy of the signed order on the client has been filed with the court. (
Ibid.
)
Moving party is ordered to give notice.
Ruling
JYLA ELSA CORRAL, ET AL. VS FORD MOTOR COMPANY, A CORPORATION, ET AL.
Jul 11, 2024 |
22STCV27975
Case Number:
22STCV27975
Hearing Date:
July 11, 2024
Dept:
71
Superior Court of California
County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
JYLA ELSA CORRAL, et al.
,
vs.
FORD MOTOR COMPANY, et al.
Case No.:
22STCV27975
Hearing Date:
July 11, 2024
Defendant Westinghouse Air Brake Technologies Corporation
s
unopposed
motion for leave to file a cross-complaint against Defendants International Service Center, Inc. and Edwin Torres is granted.
Defendant Westinghouse Air Brake Technologies Corporation may file the proposed cross-complaint with the Court.
Defendant Westinghouse Air Brake Technologies Corporation (Wabtec)
(Moving Defendant) moves
unopposed
for an order granting leave to file a cross-complaint (CC) against Defendants International Service Center, Inc. (ISC) and Edwin Torres (Torres) (collectively, Defendants) on the grounds that the CC arises out of the same general facts as the operative Complaint (and cross-complaints) presently on file, that no prejudice will result to the Defendants by the granting of this motion, and that the CC, which Wabtec now seeks to file, will serve to protect the interests of Wabtec should a judgment be entered against
it.
(Notice of Motion, pg
. 1.)
Procedural Background
This lawsuit brought by Plaintiffs Jyla Elsa Corral, Jonaven Hess Corral, Jazlyn Leilani Corral, Jayven Cali Corral, and Jocelyn Gianna Corral, by and through their GAL Rafal Corral, (collectively, Plaintiffs) individually and as successors in interest to Heather Susy Garcia (Decedent) arises from a fatal accident on January 22, 2022, wherein Decedent fell out of a moving party bus. Plaintiffs filed their initial complaint on August 26, 2022, against Ford Motor Company (Ford), ISC, and Torres (the owner and driver of the bus) (collectively, Plaintiffs).
ISC filed a cross-complaint against Wabtec on October 20, 2023,
which Wabtec answered on November 20, 2023.
On October 5, 2023, Plaintiffs amended their complaint to add Wabtec as a Doe defendant.
On December 15, 2023, Plaintiffs moved for leave to file a First Amended Complaint (FAC), which this Court heard and granted on April 11, 2024.
On July 2, 2024, this Court approved Fords applications for good faith settlement determination with Plaintiffs and Defendants Grech Motors Inc. and Edward P. Grech.
Wabtec filed the instant motion on May 2, 2024.
As of the date of this hearing no opposition has been filed.
Motion for Leave to Amend
C.C.P. §426.50 provides:
A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file a cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This section shall be liberally construed to avoid forfeiture of causes of action.
(C.C.P. §426.50.)
California rules further provide authority to file a Cross-Complaint against a party who has filed a Complaint against the movant if the claims arise out of the same occurrences as the claims brought against it.
(
See
C.C.P. §§428.10(a)-(b).)
At any time during the course of the lawsuit, the court retains power to permit defendant to file or amend a cross-complaint to avoid forfeiture of defendants related claim.
(
See Silver Organizations Ltd. v. Frank
(1990) 217 Cal.App.3d 94, 98-99 [stating even on eve of trial, leave to file compulsory cross-complaint mandatory absent bad faith].)
CRC Rule 3.1324(a) requires that a motion to amend must: [i]nclude a copy of the proposed . . . amended pleading . . . [and] state what allegations in the previous pleading are proposed to be [deleted and/or added], if any, and where, by page, paragraph, and line number, the [deleted and/or additional] allegations are located.
CRC Rule 3.1324(b) provides, as follows: [a] separate declaration must accompany the motion and must specify: (1) [t]he effect of the amendment; (2) [w]hy the amendment is necessary and proper; (3) [w]hen the facts giving rise to the amended allegations were discovered; and (4) [t]he reasons why the request for amendment was not made earlier.
Wabtecs motion substantially complies with CRC Rule 3.1324(a). The motion includes a copy of the proposed CC. (Decl. of Lohman ¶6, Exh. A.)
Webtecs motion substantially complies with CRC Rule 3.1324(b).
Wabtec submitted a separate declaration of its counsel that specifies the effect of the amendments and explains why the amendments are necessary and proper. (Decl. of Lohman ¶2.) Wabtec asserts the amendments are necessary because it determined that there are indemnification and apportionment claims it has against Defendants ISC and Torres which arise out of the same transactions and occurrences giving rise to this case. (Decl. of Lohman ¶2.)
Wabtecs counsel states when the facts giving rise of the amended allegations were discovered and why the request for amendment was not made earlier.
Wabtecs counsel declares, [h]aving participated in the March 27, 2024 inspection of the subject bus and participated in discovery, Wabtec would be prejudiced should the Court not grant leave for it to file its Cross-Complaint against ISC and Torres, as it would be barred from making these claims in a separate action.
(Decl. of Lohman ¶5.)
Plaintiffs counsel further declares, Wabtec did not file a Cross-Complaint against ISC initially at the time that it answered its Cross-Complaint against Wabtec, albeit in good faith, while it investigated the claims asserted in this matter. For the same reasons, Wabtec also did not file a Cross-Complaint against Torres.
(Decl. of Lohman ¶¶3-4.)
Based on the foregoing, Wabtecs motion for leave to file its CC against ISC and Torres is granted.
Conclusion
Wabtecs
unopposed
motion for leave to file its CC against ISC and Torres is granted.
Wabtec may file the proposed CC with the Court.
Moving Party to give notice.
Dated:
July _____, 2024
Hon. Daniel M. Crowley
Judge of the Superior Court
Ruling
MARIANA ACOSTA VS HECTOR EDUARDO GALBUSERA
Jul 09, 2024 |
20STCV33737
Case Number:
20STCV33737
Hearing Date:
July 9, 2024
Dept:
T Motion to Change Venue
Moving Party:
Plaintiff Mariana Accosta Responding Party:
Defendant Hector Galbusera Tentative Ruling:
Denied.
BACKGROUND
On September 03, 2020, Plaintiff Mariana Acosta (Plaintiff) filed a Complaint alleging motor vehicle action against Defendant Hector Eduardo Galbusera (Defendant) and DOES 1 through 30, inclusive. Defendant filed his Answer to the Complaint on October 20, 2020.
On May 31, 2024, Plaintiff filed the instant Motion to Transfer. Defendant filed his opposition to the motion on June 13, 2024. Plaintiff has filed a reply.
DISCUSSION
Applicable Law
Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.] [Citation.] (Dow AgroSciences, LLC v. Superior Court (2017) 16 Cal.App.5th 1067, 1076.)¿¿
[I]f an action or proceeding is commenced in a court having jurisdiction over the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced& (Code Civ. Proc., § 396b(a).) The burden is on the moving party to establish facts justifying the transfer. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 928.) Absent an affirmative showing to the contrary, the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action. (Id.; Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)
Analysis
The Complaint alleges a negligence cause of action against the Defendant for a motor = vehicle accident that occurred on the ramp of SR-60 E/B to the I-710 N/B, Los Angeles, CA 90022. (Compl.) Plaintiff alleges that Defendant fell asleep while driving, causing the crash with Plaintiff, and was cited for violating California Vehicle Code section 22350 - Unsafe Speed by the California Highway Patrol. (Id. p. 5.)
Plaintiff seeks to transfer the action to a trial department in Downtown Los Angeles. (Mot. p. 2) Plaintiff argues that the lawsuit has no connection to Alhambra since the subject incident occurred downtown, neither party lives in Alhambra, and all witnesses, including first responders and Plaintiffs medical provider, live in/near or work in/near downtown Los Angeles. Plaintiff asserts that the venue is proper in the central district because the case was initially filed there and had remained there for nearly four years before being transferred to this Court.
In opposition, Defendant argues that Plaintiff fails to provide any statutory authority to support the motion. The Court disagrees. First, Defendant mistakes the motion for a motion for forum non-convenes. That is not the case as Plaintiff rests the motion under Code of Civil Procedure Sections 395(a), 397(c).
However, Plaintiff has not carried her burden in showing that a change in venue back to downtown is justifiable. Here, the standard is not so much about focusing on convenience but rather on the inconvenience of the venue for the action. The plaintiffs contention that witnesses are in or around downtown is simply not enough to carry her burden under the statute. While one courthouse may be more convenient to some witnesses, the level of inconvenience is not substantial and a transfer is not necessary to further the interests of justice. Further, Plaintiff argues that she would be prejudiced by a trial continuance. Because the matter is set for trial on October 14 in Department T and it is extremely unlikely that the case would be set any earlier in a downtown courthouse, denial of this motion protects Plaintiff from the perceived prejudice resulting from a trial continuance.
CONCLUSION
Based on the foregoing, Plaintiffs Motion to Change Venue is DENIED.
Ruling
JUAN vs REGENTS OF THE UNIVERSITY OF CALIFORNIA
Jul 10, 2024 |
Civil Unlimited (Civil Rights/Discrimination) |
24CV077213
24CV077213: JUAN vs REGENTS OF THE UNIVERSITY OF CALIFORNIA
07/10/2024 Hearing on Motion - Other MOTION TO DISMISS COUNSEL; filed by Diana
Juan (Plaintiff) in Department 19
Tentative Ruling - 07/03/2024 Joscelyn Jones
The Hearing on Motion - Other MOTION TO DISMISS COUNSEL; filed by Diana Juan
(Plaintiff) scheduled for 07/10/2024 is continued to 07/31/2024 at 03:00 PM in Department 19 at
Rene C. Davidson Courthouse .
Plaintiff’s “Motion to Dismiss Counsel” is CONTINUED to July 31, 2024 at 3:00 p.m. in
Department 19.
Plaintiff does not need to file a motion or obtain a court order to represent herself in this case.
Instead, Plaintiff is directed to file a “Substitution of Attorney – Civil”, using Judicial Council
form MC-050. Use of this form is mandatory if a litigant will no longer be represented by the
litigant’s former attorney.
If Plaintiff files a correctly completed “Substitution of Attorney – Civil” form prior to the
continued July 31, 2024 hearing, the Court will vacate that hearing.
Ruling
JANE DOE L.P., ET AL. VS DOWNEY UNIFIED SCHOOL DISTRICT
Jul 11, 2024 |
20STCV30564
Case Number:
20STCV30564
Hearing Date:
July 11, 2024
Dept:
48
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
JANE DOE L.P.,
Plaintiff,
vs.
DOWNEY UNIFIED SCHOOL DISTRICT,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NO.: 20STCV30564
[TENTATIVE] ORDER GRANTING IN PART MOTION TO COMPEL FURTHER RESPONSES
Dept. 48
8:30 a.m.
July 11, 2024
On
December 11, 2023, Plaintiff Jane Doe L.P. served a Notice of Taking Deposition of Defendant Downey Unified School Districts Person Most Knowledgeable and Fact Witness Principal Tom Houts and Request for Production of Documents (RFPs) on Defendant Downey Unified School District.
On February 22, 2024, Plaintiff filed a motion to compel further responses to RFP No. 4.
At the March 19, 2024, hearing, the Court found that some information about K.G., such as that related to Defendants knowledge of his prior similar misconduct and need for supervision, may be relevant.
However, the Court found that RFP No. 4 was overbroad.
The Court also noted that the request infringed on K.G.s privacy rights without giving him notice before the disclosure.
Accordingly, the Court continued the hearing, ordered the parties to meet and confer about the scope of RFP No. 4, and ordered Defendant to provide K.G.s guardians last known address and phone number to Plaintiff so that Plaintiff could provide notice of the motion and the continued hearing date.
On May 3, 2024, Plaintiffs counsel filed a supplemental declaration.
Plaintiff has served K.G.s guardian with notice of the motion via U.S. mail and email.
(Baldermann Suppl. Decl. ¶ 13 & Ex. 13.)
Since the last hearing, Plaintiff and Defendant have been discussing the scope of RFP No. 4.
(Baldermann Suppl. Decl. ¶¶ 6-10.)
However, from April 18, 2024 through May 1, 2024, Defendants counsel stopped responding to Plaintiffs counsel.
(Baldermann Suppl. Decl. ¶ 11.)
At the June 4, 2024 hearing, the Court ordered supplemental briefing and continued the hearing.
Defendant timely filed a supplemental brief with exhibits.
One of these exhibits is an email from K.Gs guardian in response to a conversation with Defendants counsel, which states, I do not Authorize Downey Unified School District to release [K.G.s] school records.
And also [K.G.] will be pleading the Fifth Amendment.
(Evenstad Decl., Ex. D.)
As propounded, RFP No. 4 requests Any and all SCHOOL RECORDS in YOUR possession, custody or control for K.G.
SCHOOL RECORDS is defined as any and all written notes, memos, reports, or other writings regarding a student including but not limited to report cards, progress reports, letters, notes, nurses notes, attendance records, health records, incident reports, IEP reports, correspondence, class schedules, or any other written material having anything whatsoever to do with the student in YOUR possession, custody or control.
Defendants last specific offer (March 26, 2024) was for K.G.s student profile, enrollment history, attendance history, entry into the special education program dates, and the September 2019 IEP outlining the supervision/services that his IEP called for at the time of the incident.
(Baldermann Suppl. Decl. ¶ 6 & Ex. 7.)
On April 23, 2024, Defendants counsel communicated that she think[s] the production should be limited to the IEP in place at the time of the incident, which is really the only thing that would meet the directly relevant standard.
(Evenstad Supple Decl., Ex. C.)
Plaintiffs last request (April 25, 2024) was for K.G.s student profile, enrollment history, class schedule for the 2019-2020 school year, entry into the special education program dates, IEP/504 Triennial Plans for the time period of August 1, 2012 - December 6, 2019, behavioral and psychosocial reports up until December 6, 2019, Disciplinary Records from August 1, 2012 - December 6, 2019, if any, which shall include written/recording verbal warnings, written warnings, incident reports, suspensions, detentions, complaints regarding behavioral issues and incidents, reprimands, and any similar admonishments of inappropriate behavior demonstrated by K.G.
(Baldermann Suppl. Decl. ¶ 10 & Ex. 11.)
In its supplemental opposition, Defendant now asks the Court to limit the production to K.G.s student profile with his demographic information and enrollment history and special education program information, which includes the special education programs and dates from 2011 through the time of the incident; K.G.s September 2019 IEP; and K.G.s discipline history from the start of summer school 2019 until the incident, which is the only time that plaintiff and K.G. attended Downey High School.
(Suppl. Opposition at p. 4.)
Defendant contends that it cannot offer more or less supervision of a student where it is not called for in an IEP and agreed to by the parent, and a school cannot implement any special education program or provide services to a child if the parent doesnt agree to them.
(Suppl. Opposition at pp. 6-7.)
However, Defendant focuses only on the IEPs requirement of parental consent to the provision of special education and related services, not Defendants general duty to supervise and protect against foreseeable harms for all students.
(See
id.
at pp. 6-8 [citing Education Code sections 56340, 56341, 56341.1, 56345].)
California courts have long recognized that a student may recover for injuries proximately caused by a breach of [a schools] duty to supervise.
(
M. W. v. Panama Buena Vista Union School Dist.
(2003) 110 Cal.App.4th 508, 518.)
The existence of a duty of care of a school district toward a student depends, in part, on whether the particular harm to the student is reasonably foreseeable.
(
Ibid.
)
The harm may be foreseeable when the alleged perpetrator was repeatedly disciplined for grave acts of defiance and inappropriate and violent behavior.
(
Id.
at p. 520.)
Plaintiff alleges that on December 6, 2019, her one-on-one aide abandoned her, resulting in Plaintiff being assaulted by K.G.
(Complaint ¶ 22.)
Plaintiff alleges that Defendant negligently failed to carry out its duties to properly and adequately supervise Plaintiff L.P. and failed to discipline, investigate, warn, appropriately supervise, or suspend [K.G.] despite having actual or constructive knowledge that he had engaged in inappropriate conduct with other minor student.
(Complaint ¶¶ 23, 46.)
Accordingly, Defendants limitation to K.Gs student profile, September 2019 IEP, and discipline history from summer 2019 is too narrow.
The limitation for K.G.s discipline history for the only time that plaintiff and K.G. attended Downey High School is particularly too narrow if Defendant had additional knowledge of K.G.s behavior from prior attendance at other schools in Defendants district.
The motion to compel further is GRANTED IN PART.
Defendant is ordered to respond to RFP No. 4 by producing the following documents to Plaintiff within 30 days:
K.G.s student profile; enrollment history; class schedule for the 2019-2020 school year; dates of entry into the special education program; IEP/504 Triennial Plans for the time period of August 1, 2012 to December 6, 2019; behavioral and psychosocial reports up until December 6, 2019; and Disciplinary Records from August 1, 2012 to December 6, 2019, if any, including written/recording verbal warnings, written warnings, incident reports, suspensions, detentions, complaints regarding behavioral issues and incidents, reprimands, and any similar admonishments of inappropriate behavior demonstrated by K.G.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.
If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.
Dated this 11th day of July 2024
Hon. Thomas D. Long
Judge of the Superior Court
Ruling
TONIA ANDRUS FLORES, ET AL. VS SAFECO INSURANCE, A LIBERTY MUTUAL COMPANY
Jul 10, 2024 |
23NWCV03289
Case Number:
23NWCV03289
Hearing Date:
July 10, 2024
Dept:
C
TONIA FLORES, ET AL. v. SAFECO INSURANCE COMPANY OF AMERICA
CASE NO.:
23NWCV03289
HEARING
: 7/10/24 @ 9:30 A.M.
#8
TENTATIVE RULING
Plaintiffs Tonia and Allen Floress motion to compel arbitration is GRANTED.
Moving Party to give NOTICE.
On September 28, 2022, DOE defendants 1 through 25 allegedly collided with the vehicle driven by plaintiff Allen Burton Flores, causing it to collide with another vehicle driven by plaintiff Tonia Andrus Flores. DOE defendants 1 through 25 allegedly did not stop and identify themselves. Plaintiffs submitted the claim to defendant Safeco Insurance Company of America.
Plaintiffs move to compel arbitration with Safeco Insurance Company of America. On June 5, 2024, the Court continued the motion to compel arbitration because Defendant filed its opposition late.
Discussion
Insurance Code section 11580.2
requires insurers to provide coverage for bodily injury or wrongful death caused by uninsured motorists. Uninsured motorist coverage requires the driver to have been injured by a vehicle with no available liability coverage, which includes when the identity of the owner or operator of the vehicle is unknown. (Ins. Code, § 11580.2, subd. (b).)
Subdivision (f) states that if the insurer and the insured cannot agree whether the insured is legally entitled to recover damages from an uninsured motorist and the amount of such damages, arbitration will determine these issues. (
Ins. Code, § 11580.2, subd. (f)
.)
The parties dispute liability and nature and extent of the damages. (Opp., pg. 2.) Thus, the parties dispute is subject to arbitration.
Defendant states it will participate in arbitration once discovery is complete. However, Defendant can also conduct discovery in arbitration.
Thus, the Court grants the motion.
Document
Progressive Casualty Insurance Company, Progressive Advanced Insurance Company, Progressive Direct Insurance Company, Progressive Garden State Insurance Company, Progressive Max Insurance Company, Progressive Mountain Insurance Company, Progressive Northern Insurance Company, Progressive Northwestern Insurance Company, Progressive Preferred Insurance Company, Progressive Specialty Insurance Company, United Financial Casualty Company v. Unique A Inc.
May 23, 2024 |
Torts - Motor Vehicle |
Torts - Motor Vehicle |
609024/2024
Document
Stacy Lane As Executrix Of The Estate Of Peter J. Navarra, deceased v. Lawrence P. Horl D.P.M., Lawrence P. Horl, D.P.M., P.C., Robert H. Clark M.D., Robert H. Clark, M.D., P.L.L.C., H. Bianca Japal M.D., H. Bianca Japal, M.D., P.C., Alvin D Holcomb M.D.,, Alvin D. Holcomb, M.D., P.C.,, South Nassau Communities Hospital, Mount Sinai South Nassau Hospital
Jul 08, 2020 |
Rhonda E. Fischer
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
606872/2020
Preview
FILED: NASSAU COUNTY CLERK 01/12/2024 10:08 AM INDEX NO. 612415/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 EXHIBIT A FILED: r ALmu: NASSAU mammau cuumn COUNTY CLERK unann 01/12/2024 us / ve / avaa 10:08 us : a s AM any -- INDEX "~- NO. --- 612415/2023 NYSCEF NYSCEF DOC. DÓC. NO. NO. 26 1 RECEIVED RECEIVED NYSCEF: NYSCEF: 08/04/2023 01/12/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Index No.: ------------------------------------------------X Date Filed: JOSEPH MONTILLI, Plaintiff designates Nassau Plaintiff, 'County as the place of venue The basis of Venue: Plane of Occurrence SUMMONS COUNTY OF NASSAU, INCORPORATED VILLAGE OF CEDARHURST, TOWN OF HEMPSTEAD, and NATIONAL GRID USA SERVICE CO., INC. Defendants. -------------------------------------------Ç TO THE ABOVE-NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the Complaint in this action, and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve a Notice of Appearance on the plaintiff's attorneys within twenty (20) days after the service of this Summons, exclusive of the day of service, where service is made by delivery upon you personally within this state, or, within thirty (30) days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: Uniondale, New York June 15, 2023 By: Jennife M. Ahlfeld, Esq. THE LICATESI LAW GROUP, LLP Attorneys for Plaintiff 423 RXR Plaza, East Tower Uniondale, New York 11556 (516) 227-2662 PLEASE PROMPTLY FORWARD THIS DOCUMENT TO YOUR INSURANCE COMPANY 1 of 17 ---- INDEX --·NO. ---"--' ---- 612415/2023 FILED: .u..mu: NASSAU cuumr manamu COUNTY x CLERK uc01/12/2024 us.mma / ve / avaa 10:08 us AM : a s ary NYSCEF NYSCEF DOC. DOC. NO. NO. 126 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/04/2p23 01/12/2024 P DEFENDANTS' ADDRESSES: County ofNassau Office of the Nassau County Attorney One West Street Mineola, New York 11501 Incorporated Village of Cedarhurst 200 Cedarhurst Avenue Cedarhurst, New York 11516 Town of Hempstead 1 Washington Street Hempstead, New York 11550 NATIONAL GRID USA SERVICE CO. INC. C/O Secretary of State 80 State Street Albany NY 12207 . 2 of 17 FILED: NASSAU yrusu: manaau COUNTY uvunxx CLERK cusan 01/12/2024 us / v e a v a o 10:08 v y : z , AM / ang -- INDEX NO. 612415/2023 --- ~~~ ~--- NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 08/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU _______------------..-----------------------Ç JOSEPH MONTILLI, Plaintiff, VERIFIED COMPLAINT - against - Index No.: COUNTY OF NASSAU, INCORPORATED VILLAGE OF CEDARHURST, TOWN OF HEMPSTEAD, and NATIONAL GRID USA SERVICE CO., INC. Defendants. --.._________-----------..------_____---------Ç Plaintiff, JOSEPH MONTILLI, by his attorneys, THE LICATESI LAW GROUP, LLP complaining of the Defendants, herein, respectfully alleges, upon information and belief, as follows: 1. That at all times hereinafter mentioned, the Plaintiff, JOSEPH MONTILLI was and still is a resident of the County of Nassau, State of New York. 2. That at all times herein relevant, defendant, COUNTY OF NASSAU, is a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York. 3. That at all times herein relevant, defendant, INCORPORATED VILLAGE OF CEDARHURST, is a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York. . 4. That at all times herein relevant, defendant, TOWN OF HEMPSTEAD, is a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York. 5. That at all times hereinafter mentioned, the defendant, NATIONAL GRID USA SERVICE CO. INC. was and still is a domestic business corporation duly organized and existing under the laws of the State of New York. 6. That at all times hereinafter mentioned, the defendant, NATIONAL GRID USA SERVICE 3 of 17 FILED: NASSAU UVUmTX gr LAdsu s mammau COUNTY U1dsKA CLERK UU/ 01/12/2024 4U4.3 10:08 UN: 4 f AM INDEX ^~' ^^--" NO. "^~'' 612415/2023 ' ""-- U9/ m'| NYSCEF DOC. NYSCEF DOC. NO. NO. 126 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/04/2023 01/12/2024 CO. INC. was and still is a foreign corporation duly organized and existing under the laws of the State of New York. 7. That on or about January 18, 2023, and within ninety (90) days after the date of the accident, and more than thirty (30) days prior to the commencement of this action, plaintiff duly presented, served and filed a Notice of Claim with the Defendants, INCORPORATED VILLAGE OF CEDARHURST, TOWN OF HEMPSTEAD, COUNTY OF NASSAU and NATIONAL GRID USA SERVICE CO. INC for adjustment of the damages sustained by the plaintiff herein, upon which this action is based, and thereafter more than thirty days passed, and said defendant has failed or refuses to make an adjustment of said claim, and said claim remains unpaid or unadjusted, although plaintiff has duly demanded that same be adjusted and paid. 8. That prior to the commencement of this action, Plaintiff was ready, willing and ready to appear at any designated hearings. 9. That prior to the commencement of this action, plaintiff duly complied with all the conditions precedent to the bringing of this action including appearing for a 50-H Hearing on or about May 24, 2023, at the request of Defendant, COUNTY OF NASSAU. 10. That at all times herein relevant, the road between Broadway Avenue at and/or near Grove Avenue, County ofNassau, State ofNew York, was and still is a public roadway in use by the residents of the County of Nassau and others. 11. That on January 11, 2023, at approximately 6:00 PM. while Plaintiff was proceeding westbound on Broadway and Grove Avenue in Cedarhurst, New York, Plaintiff's vehicle came into contact with an unsecured utility cover which became dislodged and opened upon contact underneath his car. 12. As a result of the foregoing, Plaintiff was caused to be injured as a result of a dangerous, hazardous, defective, unsecured, broken, misaligned and/or unsafe condition then and there existing 4 of 17 y Alasu FILED: mananu : NASSAU COUNTY uvuarx CLERK cussa 01/12/2024 un ve / 494.3 10:08 us : a s AM --- INDEX NO. "~· 612415/2023 ---"--' ---- am NY SCEF DOC. NYSCEF DOC. NO. N0. 1 26 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/12/2024 08/04/2023 on the roadway. (See annexed and incorporated herein 4 color photographs taken after immediately the accident, and 3 color photographs taken on 13, 2023, the presence of January demonstrating National Grid). 13. That upon information and belief, at all times herein relevant, it was the of the duty defendant COUNTY OF NASSAU, its agents, servants and/or employees to properly maintain its roadways located between Broadway and Grove Avenue in the County of Nassau, City of Cedarhurst, State of New York, and to keep said roadways in a reasonably safe condition. 14. That upon information and belief, at all times herein relevant, it was the duty of the defendant COUNTY OF NASSAU, its agents, servants and/or employees to ensure that utility covers located on its roadways, including between Broadway and Grove Avenue in the County of Nassau, City of Cedarhurst, and State of New York, were not left unsecured. 15. That upon information and belief, at all times herein relevant, defendant, COUNTY OF NASSAU, owned, maintained, managed, operated, controlled and/or repaired said roadway. 16. That upon information and belief, at all times herein relevant, defendant, COUNTY OF NASSAU, owned, maintained, managed, operated, controlled and/or repaired said utility cover. 17. That at all times herein relevant, the defendant COUNTY OF NASSAU, its agents, servants and/or employees, caused, created, permitted and/or allowed a dangerous, defective, hazardous and unsafe condition of an unsecured utility cover to exist on its roadway. 18. That upon information and belief, at all times herein relevant, it was the duty of the defendant INCORPORATED VILLAGE OF CEDARHURST, its agents, servants and/or employees to properly maintain its roadways located between Broadway and Grove Avenue in the County of Nassau, State of New York, and to keep said roadways in a reasonably safe condition. 19. That upon information and belief, at all times herein relevant, it was the duty of the defendant INCORPORATED VILLAGE OF CEDARHURST, its agents, servants and/or employees 5 of 17 t ve r sus.s us -- INDEX NO. ---- -· ---- 612415/2023 FILED: : F.i.usu manaau COUNTY cussa NASSAU uvuarz CLERK vo01/12/2024 : a s am 10:08 AM NYSCEF DOC. NYSCEF DOC. NO. NO. 126 RECEIVED NYSCEF: 08/04/2p23 RECEIVED NYSCEF: 01/12/2024 to ensure that covers located on its roadways, between Broadway and Grove utility including Avenue in the County of Nassau, and State of New York, were not left unsecured. 20. That upon information and belief, at all times herein relevant, defendant, INCORPORATED VILLAGE OF CEDARHURST, owned, maintained, managed, operated, controlled and/or repaired said roadway. 21. That upon information and belief, at all times herein relevant, defendant, INCORPORATED VILLAGE OF CEDARHURST, owned, maintained, managed, operated, controlled and/or repaired said utility cover. 22. That at all times herein relevant, the defendant INCORPORATED VILLAGE OF CEDARHURST, its agents, servants and/or employees, caused, created, permitted and/or allowed a dangerous, defective, hazardous and unsafe condition of an unsecured utility cover to exist on its roadway. 23. That upon information and belief, at all times herein relevant, it was the duty of the defendant TOWN OF HEMPSTEAD, its agents, servants and/or employees to properly maintain its roadways located between Broadway and Grove Avenue in the County of Nassau, State of New York, and to keep said roadways in a reasonably safe condition. 24. That upon information and belief, at all times herein relevant, it was the duty of the defendant TOWN OF HEMPSTEAD, its agents, servants and/or employees to ensure that utility covers located on its roadways, including between Broadway and Grove Avenue in the County of Nassau, City of Cedarhurst, and State of New York, were not left unsecured. 25. That upon information and belief, at all times herein relevant, defendant, TOWN OF HEMPSTEAD, owned, maintained, managed, operated, controlled and/or repaired said roadway. 26. That upon information and belief, at all times herein relevant, defendant, TOWN OF HEMPSTEAD, owned, maintained, managed, operated, controlled and/or repaired said utility cover. 6 of 17 FILED: F 1Lmu : NASSAU mammau COUNTY unumr x CLERK us.mun 01/12/2024 90 / ve / ana a 10:08 AM v y : a s arm -- INDEX NO. -~" 612415/2023 ------ - --- NYSCEF NYSCEF DOC. DOC. NO. NO. 26 1 RECEIVED RECEIVED NYSCEF: NYSCEFt 01/12/2024 08/04/2023 27. That at all times herein relevant, the defendant TOWN OF HEMPSTEAD, its agents, servants and/or employees, caused, created, permitted and/or allowed a dangerous, defective, hazardous and unsafe condition of an unsecured utility cover to exist on its roadway. 28. That upon information and belief, at all times herein relevant, it was the duty of the defendant NATIONAL GRID USA SERVICE CO. INC, its agents, servants and/or employees to properly maintain its roadways located between Broadway and Grove Avenue in the County of Nassau, City of Cedarhurst, State of New York, and to keep said roadways in a reasonably safe condition. 29. That upon information and belief, at all times herein relevant, it was the duty of the defendant NATIONAL GRID USA SERVICE CO. INC, its agents, servants and/or employees to ensure that utility covers located on its roadways, including between Broadway and Grove Avenue in the County of Nassau, City of Cedarhurst, and State of New York, were not left unsecured. 30. That upon information and belief, at all times herein relevant, defendant, NATIONAL GRID USA SERVICE CO. INC, owned, maintained, managed, operated, controlled and/or repaired said roadway. 31. That upon information and belief, at all times herein relevant, defendant, NATIONAL GRID USA SERVICE CO. INC, owned, maintained, managed, operated, controlled and/or repaired said utility cover. 32. That at all times herein relevant, the defendant NATIONAL GRID USA SERVICE CO. INC, its agents, servants and/or employees, caused, created, permitted and/or allowed a dangerous, defective, hazardous and unsafe condition of an unsecured utility cover to exist on its roadway. 33. That as a result of the foregoing, Plaintiff, sustained severe and serious personal injuries and has otherwise been damaged thereby. 34. This accident occurred as a result of the negligence, carelessness and recklessness of 7 of 17 FILED: mammau yrrasu:NASSAU uvumrz COUNTY crasan CLERK un/ 01/12/2024 us/ auza 10:08 vy AM : 4 s mug INDEX ·~· ^~~~- NO. ---"--' ---- 612415/2023 NYSCEF DOC. NYSCEF DOC. NO. NO. 26 1 RECEIVED NYSCEF: RECEIVED NYSCEF: #8/04/2023 01/12/2024 the respondents, COUNTY OF NASSAU and/or INCORPORATED VILLAGE OF CEDARHURST and/or TOWN OF HEMPSTEAD, and/or NATIONAL GRID USA SERVICE CO. INC., its agents, servants and/or employees, in their ownership, operation, maintenance, "utility" management, repair and control of the roadway and cover at said location as delineated herein and depicted in the annexed photographs. 35. That by reason of the foregoing, plaintiff was caused to sustain damages in an amount which exceeds the jurisdictional limitation of all lower Courts which would otherwise have jurisdiction over this action. WHEREFORE, Plaintiff demands judgement in his favor against the Defendants, jointly and/or severally, in a sum which exceeds thejurisdictional limits of all inferior Courts together with costs and disbursements of this action. Dated: Uniondale, New York June 15, 2023 By: Jennif M. Ahlfeld, Esq. THE LICATESI LAW GROUP Attorneys for Plaintiff 423 RXR Plaza, East Tower Uniondale, New York 11556 (516) 227-2662 8 of 17 yLL.zv:mammau FILED: NASSAU COUNTY cuumrz CLERK u01/12/2024 UA.zna c / ve / avaa 10:08 us AM : a s ary ---- INDEX NO. --- 612415/2023 ---"--' ---- NYSCEF NYSCEF If0C. DOC. NO. 1 NO. 26 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/12/2024 08/04/2023 PLAINTIFF'S VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF NASSAU ) JOSEPH MONTILLI, being duly sworn, deposes and says: I have read the annexed Complaint and know the contents thereofand the same is true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters, I believe them to be true. JOS