Preview
FILED: NASSAU COUNTY CLERK 11/01/2023 02:31 PM INDEX NO. 610127/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/01/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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LESLY SAINTILLE and KIMBERLIE DESMANGLES, Index No. 610127/2023
Plaintiff, ORDER WITH NOTICE
OF ENTRY
-against-
CESAR ANTONIO OSORIO CERRATO, ROBENSEN
CELESTIN, NILT INC. TRUSTEE, and MADELL
CELESTIN,
Defendants.
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COUNSEL:
PLEASE TAKE NOTICE, that the annexed is a true copy of an Order
signed by the Honorable James P. McCormack, J.S.C., on October 26, 2023, and entered
in the Office of the Clerk of the County of Suffolk on October 27, 2023.
Dated: New York, New York
November 1, 2023
LONDON FISCHER LLP
By: ______________________________
Alisia A. LoSardo
Attorneys for Defendant
Nissan-Infiniti LT LLC (“N-I LLC”)
i/s/h/ “NILT, Inc. Trustee”
59 Maiden Lane, 39th Floor
New York, New York 10038
(212) 972-1000
TO: CAMMARASANA & BILELLO, ESQS.
Charles J. Bilello, Esq.
Attorneys for Plaintiffs
Leslie Saintille and Kimberlie Desmangles
250 Mineola Boulevard, 2nd Floor
Mineola, New York 11501
(516) 746-6066
{N2328755.1 }
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CESAR ANTONIO OSORIO CERRATO
Defendant
61 Grange Street
Franklin Square, New York 11010
ROBENSEN CELESTIN
Defendant
112 Florence Avenue
Hempstead, New York 11550
MADELL CELESTIN
Defendant
112 Florence Avenue
Hempstead, New York 11550
{N2328755.1 }
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SUPREME COURT - STATE OF NEW YORK
PRESENT:
Honorable James P. McCormack
Justice
x TRIAL/IAS, PART 8
NASSAU COUNTY
LESLY SAINTILLE and KIMBERLIE
DESMANGLES,
Index No.: 610127/23
Plaintiff,
Motion Seq. No.: 01
-against- Motion Submitted: 9/12/23
CESAR ANTONIO OSORIO CERRATO,
ROBENSEN CELESTIN, NILT INC.
TRUSTEE and MADELL CELESTIN,
Defendant(s).
x
The following papers read on this motion:
Notice of Motion/Affirmation in Support/Supporting Exhibits...............X
Defendant, NILT, Inc. Trustee (NILT), moves this court, pursuant to CPLR
§3211(a)(7), for an order dismissing the complaint. Neither Plaintiffs, Lesly Saintille and
Kimberlie Desmangles, nor Co-Defendants, Cesar Antonio Osorio Cerrato, Robensen
Celestin (Robensen) and Madell Celestin (Madell), oppose the motion.
This matter involves a car accident that took place at or near the intersection of
Jerusalem Ave and Rutland Avenue, Uniondale, County of Nassau. At the time of the
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accident, Robenson was driving a that Madell leased from NILT.
Plaintiffs commenced this action by service of a summons and complaint dated
June 26, 2023. NILT bright this motion in lieu of an answer.
NILT moves to dismiss the complaint against it, arguing that pursuant to 49 USC
30106, also referred to as the Graves Amendment, it cannot be held liable for Plaintiffs’
injuries based on the fact that it was solely the lessor of Madell’s vehicle.
On a motion to dismiss for failure to state a cause of action pursuant to CPLR
§3211 (a) (7), “the sole criterion is whether the pleading states a cause of action, and if
from its four corners factual allegations are discerned which taken together manifest any
cause of action cognizable at law[,] a motion for dismissal will fail” (Guggenheimer v
Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994];
Hense v Baxter, 79 AD3d 814, 815 [2d Dept 2010]; Sokol v Leader, 74 AD3d 1180,
1180-1181 [2d Dept. 2010]). “The complaint must be construed liberally, the factual
allegations deemed to be true, and the nonmoving party granted the benefit of every
possible favorable inference” (Hense v Baxter, 79 AD3d 814, 815 [2d Dept 2010], supra;
see Leon v Martinez, 84 NY2d 83, 87 [1994], supra; Sokol v Leader, 74 AD3d 1180,1181
[2d Dept 2010], supra; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d
Dept 2008]).
In reviewing a motion to dismiss for failure to state a cause of action pursuant to
CPLR § 3211(a)(7), the court is to accept all facts alleged in the complaint as being true,
accord plaintiff the benefit of every possible favorable inference, and determine only
whether the alleged facts fit within any cognizable legal theory (see Delbene v. Estes, 52
AD3d 647 [2d Dept. 2008]; see also 511 W.232nd Owners Corp. v. Jennifer Realty Co.,
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98 NY2D 144 [2002]. Pursuant to CPLR § 3026, the complaint is to be liberally
construed (see Leon v. Martinez, 84 NY2d at 83). It is not the court’s function to
determine whether plaintiff will ultimately be successful in proving the allegations (see
Aberbach v. Biomedical Tissue Services, 48 AD3d 716 [2d Dept 2008]; see also EBC I,
Inc. v. Goldman Sachs & Co., 5 NY3D 11 [2005]).
The pleaded facts, and any submissions in opposition to the motion, are accepted
as true and given every favorable inference (see 511 W. 323nd Owners Corp. v. Jennifer
Realty Co., 98 NY2d at 151-152; Dana v. Malco Realty, Inc., 51 AD3d 621 [2d Dept
2008]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). However, a court may
consider evidentiary material submitted by a defendant in support of a motion to dismiss a
complaint pursuant to CPLR § 3211(a)(7) (see CPLR § 3211[c]; Sokol v. Leader, 74
AD3d at 1181). “When evidentiary material is considered” on a motion to dismiss a
complaint pursuant to CPLR § 3211(a)(7), the criterion is whether the plaintiff has a
cause of action, not whether they have properly stated one, and unless it has been shown
that a material fact as claimed is not a fact at all or that no significant dispute exists, the
dismissal should not be granted (Guggenheimer v. Ginzburg, 43 NY2d at 275; see Sokol
v. Leader, 74 AD3d at 1182).
The Graves Amendment holds that an entity in the business of leasing or renting
vehicles cannot be held vicariously liable for an injury caused by such a vehicle, unless
the entity itself was negligent in some manner. 49 USCA 30106(a)(1) and (2).
In support of its motion, NILT submits, inter alia, an affidavit of Allison Edmond,
Supervisor for the Specialty Collections department of Nissan Motor Acceptance
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Company LLC, formerly known as NILT. According to Ms. Edmond, NILT entered into
a lease agreement with Madell on February 17, 2020, whereby Madell leased the subject
vehicle. The lease required Madell to assume responsibility for all aspects of maintaining
the vehicle. NILT does not repair, maintain, deliver, service, operate, manage, possess,
supervise, use, control, inspect, market or advertise vehicles. Paragraph 26 of the lease
states that Madell is responsible for the risk of loss and damage or destruction of the car.
Based upon Ms. Edmond’s affidavit, and the lease agreement, the Graves
Amendment applies to NILT.
In light of the foregoing, the complaint against NILT should be dismissed.
Accordingly, it is hereby
ORDERED, that NILT’s motion to dismiss the complaint against it, pursuant
CPLR §3211(a)(7) is GRANTED in its entirety. The complaint is dismissed against
EAN.
The foregoing constitutes the Decision and Order of the Court.
Dated: October 26, 2023
Mineola, N.Y.
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Preview
FILED: NASSAU COUNTY CLERK 11/01/2023 02:31 PM INDEX NO. 610127/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------------ x LESLY SAINTILLE and KIMBERLIE DESMANGLES, Index No. 610127/2023 Plaintiff, ORDER WITH NOTICE OF ENTRY -against- CESAR ANTONIO OSORIO CERRATO, ROBENSEN CELESTIN, NILT INC. TRUSTEE, and MADELL CELESTIN, Defendants. ------------------------------------------------------------------------ x COUNSEL: PLEASE TAKE NOTICE, that the annexed is a true copy of an Order signed by the Honorable James P. McCormack, J.S.C., on October 26, 2023, and entered in the Office of the Clerk of the County of Suffolk on October 27, 2023. Dated: New York, New York November 1, 2023 LONDON FISCHER LLP By: ______________________________ Alisia A. LoSardo Attorneys for Defendant Nissan-Infiniti LT LLC (“N-I LLC”) i/s/h/ “NILT, Inc. Trustee” 59 Maiden Lane, 39th Floor New York, New York 10038 (212) 972-1000 TO: CAMMARASANA & BILELLO, ESQS. Charles J. Bilello, Esq. Attorneys for Plaintiffs Leslie Saintille and Kimberlie Desmangles 250 Mineola Boulevard, 2nd Floor Mineola, New York 11501 (516) 746-6066 {N2328755.1 } 1 of 6 FILED: NASSAU COUNTY CLERK 11/01/2023 02:31 PM INDEX NO. 610127/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/01/2023 CESAR ANTONIO OSORIO CERRATO Defendant 61 Grange Street Franklin Square, New York 11010 ROBENSEN CELESTIN Defendant 112 Florence Avenue Hempstead, New York 11550 MADELL CELESTIN Defendant 112 Florence Avenue Hempstead, New York 11550 {N2328755.1 } 2 of 6 FILED: NASSAU COUNTY CLERK 11/01/2023 02:31 PM INDEX NO. 610127/2023 NYSCEF DOC. NO. 18 17 RECEIVED NYSCEF: 11/01/2023 10/27/2023 SUPREME COURT - STATE OF NEW YORK PRESENT: Honorable James P. McCormack Justice x TRIAL/IAS, PART 8 NASSAU COUNTY LESLY SAINTILLE and KIMBERLIE DESMANGLES, Index No.: 610127/23 Plaintiff, Motion Seq. No.: 01 -against- Motion Submitted: 9/12/23 CESAR ANTONIO OSORIO CERRATO, ROBENSEN CELESTIN, NILT INC. TRUSTEE and MADELL CELESTIN, Defendant(s). x The following papers read on this motion: Notice of Motion/Affirmation in Support/Supporting Exhibits...............X Defendant, NILT, Inc. Trustee (NILT), moves this court, pursuant to CPLR §3211(a)(7), for an order dismissing the complaint. Neither Plaintiffs, Lesly Saintille and Kimberlie Desmangles, nor Co-Defendants, Cesar Antonio Osorio Cerrato, Robensen Celestin (Robensen) and Madell Celestin (Madell), oppose the motion. This matter involves a car accident that took place at or near the intersection of Jerusalem Ave and Rutland Avenue, Uniondale, County of Nassau. At the time of the 1 of 6 3 4 FILED: NASSAU COUNTY CLERK 11/01/2023 02:31 PM INDEX NO. 610127/2023 NYSCEF DOC. NO. 18 17 RECEIVED NYSCEF: 11/01/2023 10/27/2023 accident, Robenson was driving a that Madell leased from NILT. Plaintiffs commenced this action by service of a summons and complaint dated June 26, 2023. NILT bright this motion in lieu of an answer. NILT moves to dismiss the complaint against it, arguing that pursuant to 49 USC 30106, also referred to as the Graves Amendment, it cannot be held liable for Plaintiffs’ injuries based on the fact that it was solely the lessor of Madell’s vehicle. On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211 (a) (7), “the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Hense v Baxter, 79 AD3d 814, 815 [2d Dept 2010]; Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept. 2010]). “The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference” (Hense v Baxter, 79 AD3d 814, 815 [2d Dept 2010], supra; see Leon v Martinez, 84 NY2d 83, 87 [1994], supra; Sokol v Leader, 74 AD3d 1180,1181 [2d Dept 2010], supra; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d Dept 2008]). In reviewing a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7), the court is to accept all facts alleged in the complaint as being true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the alleged facts fit within any cognizable legal theory (see Delbene v. Estes, 52 AD3d 647 [2d Dept. 2008]; see also 511 W.232nd Owners Corp. v. Jennifer Realty Co., 2 of 6 4 4 FILED: NASSAU COUNTY CLERK 11/01/2023 02:31 PM INDEX NO. 610127/2023 NYSCEF DOC. NO. 18 17 RECEIVED NYSCEF: 11/01/2023 10/27/2023 98 NY2D 144 [2002]. Pursuant to CPLR § 3026, the complaint is to be liberally construed (see Leon v. Martinez, 84 NY2d at 83). It is not the court’s function to determine whether plaintiff will ultimately be successful in proving the allegations (see Aberbach v. Biomedical Tissue Services, 48 AD3d 716 [2d Dept 2008]; see also EBC I, Inc. v. Goldman Sachs & Co., 5 NY3D 11 [2005]). The pleaded facts, and any submissions in opposition to the motion, are accepted as true and given every favorable inference (see 511 W. 323nd Owners Corp. v. Jennifer Realty Co., 98 NY2d at 151-152; Dana v. Malco Realty, Inc., 51 AD3d 621 [2d Dept 2008]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7) (see CPLR § 3211[c]; Sokol v. Leader, 74 AD3d at 1181). “When evidentiary material is considered” on a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), the criterion is whether the plaintiff has a cause of action, not whether they have properly stated one, and unless it has been shown that a material fact as claimed is not a fact at all or that no significant dispute exists, the dismissal should not be granted (Guggenheimer v. Ginzburg, 43 NY2d at 275; see Sokol v. Leader, 74 AD3d at 1182). The Graves Amendment holds that an entity in the business of leasing or renting vehicles cannot be held vicariously liable for an injury caused by such a vehicle, unless the entity itself was negligent in some manner. 49 USCA 30106(a)(1) and (2). In support of its motion, NILT submits, inter alia, an affidavit of Allison Edmond, Supervisor for the Specialty Collections department of Nissan Motor Acceptance 3 of 6 5 4 FILED: NASSAU COUNTY CLERK 11/01/2023 02:31 PM INDEX NO. 610127/2023 NYSCEF DOC. NO. 18 17 RECEIVED NYSCEF: 11/01/2023 10/27/2023 Company LLC, formerly known as NILT. According to Ms. Edmond, NILT entered into a lease agreement with Madell on February 17, 2020, whereby Madell leased the subject vehicle. The lease required Madell to assume responsibility for all aspects of maintaining the vehicle. NILT does not repair, maintain, deliver, service, operate, manage, possess, supervise, use, control, inspect, market or advertise vehicles. Paragraph 26 of the lease states that Madell is responsible for the risk of loss and damage or destruction of the car. Based upon Ms. Edmond’s affidavit, and the lease agreement, the Graves Amendment applies to NILT. In light of the foregoing, the complaint against NILT should be dismissed. Accordingly, it is hereby ORDERED, that NILT’s motion to dismiss the complaint against it, pursuant CPLR §3211(a)(7) is GRANTED in its entirety. The complaint is dismissed against EAN. The foregoing constitutes the Decision and Order of the Court. Dated: October 26, 2023 Mineola, N.Y. 4 of 6 6 4