Preview
FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015
NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-------------------------- -------------------X Index No,:
ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as 61 1214/2015
Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015
deceased; OLGA LlPETS; MINDY GRABINA, as 603536/2016
Administratrix of the Estate of AMY GRABINA, and MINDY 600055/2016
GRABINA, Individually; STEVEN BARUCH, as 003364/2016
Administrator of the Estate of LAUREN BARUCH, deceased and 607598/2016
STEVEN BARUCH, Individually; JOELLE DIMONTE; 001831/201 6
MELISSA A. CRAI; and ARTHUR A. BELLI, as parent and 614685/2016
Natural Guardian of STEPHANIE BELLI, deceased, and as the
Administrator of THE ESTATE OF STEPHANIE BELLI,
REPLY
AFFIRMATION
(DiMonte)
Plaintiffs,
Honorable
- against - John H. Rouse
ULTIMATE CLASS LIMOUSINE, INC., CARLOS
PINO, ROMEO DIMON MARINE SERVICE, INC.,
STEVEN ROMEO, TOWN OF SOUTHOLD and
COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC.
d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES
1-5"
name being fictitious but intended to be the
remanufacturers, distributors and/or sellers of the 2007
Lincoln Town Car stretch limousine involved in the collision,
Defendants.
----....------ X
DAVID F. TAVELLA, an attomey duly admitted to practice law before the Courts
of the State of New York, affirms the following to be true under penalties of perjury:
1. 1 am Of Counsel to the law firm of CASCONE & KLUEPFEL, LLP,
attorneys for defendant, ROMEO DIMON MARINE SERVICE, INC. (hereinafter
referred to as "Marine") in the above-entitled matter, and as such, I am fully familiar with
the facts and circumstances surrounding this matter. The source of my knowledge is the file
maintained by this office during the course of itsdefense of this matter.
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2. I am submitting this affirmation in reply to the untimely opposition of
plaintiff, Joelle DiMonte (hereinafter, referred to as "DiMonte") to, and in further support
of. Marine's motion for an order pursuant to CPLR §3212 granting it summary judgment
dismissing the complaint of each plaintiff in this consolidated action insofar as asserted
against Marine, and dismissing any and all cross-claims asserted against it, together with
such other and further relief as to this court deems just and proper.
3. Marine has moved for summary judgment on the grounds that itcannot be
held liable as it was neither the owner nor operator of the vehicle, a red pick-up truck,
being driven by co-defendant, STEVEN ROMEO (hereinafter, referred to as "Romeo")
that was involved in the accident, or was Romeo acting within the scope of his
employment with Marine at the time of the accident. Accordingly, any negligence on
Romeo's part cannot be imputed to Marine.
4. DiMonte opposes Marine's motion claiming that itshould be denied based
on the arguments made in opposition to the motion by plaintiffs, MINDY GRABINA, as
Administratrix of the Estate of AMY GRABINA, and MINDY GRABINA, individually
(hereinatter, collectively referred to as "Grabina"), and by plaintiff, STEVEN BARUCH, as
Administrator of the Estate of LAUREN BARUCH, deceased and Individually
(hereinafter, collectively referred to as "Baruch"), whose arguments it adopts and
incorporates by reference.
"premature"
5. In opposing the motion, itis claimed that itshould be denied as
"essential"
because discovery, namely a non-party deposition, remains outstanding, and
that there are questions of fact as to whether Romeo was acting in the course of his
employment with Marine at the time of the accident, and as to his credibility.
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6. Even if this court sees fitto consider DiMonte's untimely affirmation in
opposition, which was not served at least seven days in advance of the return date of this
motion as required pursuant to CPLR §2214(b) as set forth in Marine's notice of motion,
but was served the afternoon prior to.the return date, itis nonetheless insufficient to raise
a triable issue of fact in opposition to Marine's prima facie showing of its entitlement to
summary judgment dismissing the complaint of each plaintiff in this consolidated action
insofar as assened against Marine, and dismissing any and all cross-claims asserted against
it.
7. In opposition to Marine's motion, Grabina claimed that Marine failed to
evidence,"
demonstrate its prima facie entitlement to summary judgment "with sufficient
and that the motion was premature because the deposition of non-party witness, Michelle
Canberg ("Ms. Canberg") is outstanding.
8. The court is respectfully referred to Marine's reply to Grabina's
affirmation in opposition, and to its affumation in reply to Baruch's opposition. As set
evidence"
forth in Marine's replies, itsupported itsmotion with "sufficient demonstrating
its prima facie entitlement to summary judgment, and in opposition, no question of fact
has been raised by any party.
9. Marine's evidence established not only that Romeo was the owner of the
vehicle he was operating at the time of the accident (facts neither refuted, let alone,
addressed by DiMonte or any party who has opposed the motion), but also that Romeo
was not acting within the course of his employment at the time of the accident so that his
negligence cannot be imputed to Marine.
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10. With respect to the latter, it isargued in opposition both that a question of
fact exists as to whether Romeo was acting within the course of his employment because
he might have had a Marine customer as a passenger in his vehicle at the time of the
accident (Ms. Canberg), and that the motion should be denied as premature because Ms.
Canberg's non-party deposition is outstanding.
11. And while just short of outright claiming that Romeo is a liar and
committed perjury, the plaintiffs whose arguments DiMonte adopts and incorporates by
reference, also asserts that Marine's motion should be denied because an issue exists
regarding Romeo's credibility, including whether Ms. Canberg was a passenger in his
about."
vehicle, and who knows "what else is he being untruthful To this end, they
exists"
speculate that "the realm of possibility that Romeo is "trying to shield Marine
liability"
from by not being truthful about facts surrounding the accident.
12. Such assertions are without any merit, and are speculative and
disingenuous. They are based on deposition testimony of a non-party witness (Ms.
Auer), an EMT who responded to the scene after the accident, and claims that Ms.
Cranberg was a passenger in the Romeo vehicle. However. Ms. Auer does not have any
first-hand knowledge that Ms. Canberg was a passenger in the Romeo vehicle at the time
of the accident.
"Q. How did you firstbecome aware of Michelle Canberg, that
she was injured and claiming to have been in the pickup
truck at the time of the collision?
A. I did not say she was injured, she was standing there,
someone else came up to me and told me that she was a
passenger in that pickup truck, and that she needed to be
evaluated, so I went over to her.
Q. Who was that person that told you that she was in the
pickup truck?
that."
A. I,to this day, cannot remember who told me
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"A"
(See Exhibit at pp.68-69, an unexecuted copy of the
transcript of Ms. Auer's deposition testimony, which is
annexed to the Porcelli aff. submitted on behalf of Grabina
in opposition to the motion).
13. Moreover, testimony placing Ms. Canberg at the scene is not the same as
proving that Romeo knew Ms. Canberg, and even if he did, that he knew she was at the
scene. It does not raise any credibility issue, and is insufficient to defeat Marine's
motion. Nor does it prove or raise a triable issue of fact that Ms. Canberg was a
passenger in Romeo's vehicle, or that she was being driven by Romeo in furtherance of
Marine's business.
I4. These assertions are not based on fact, but are speculative, disingenuous,
and without any merit. As such, they are insufficient to raise a triable issue of fact in
opposition to Marine's prima facie showing. See Latuso v Maresca, 150 AD3d 712 [2d
Dept. 2017]; Fredette v Tmen of Southampton, 95 AD3d 939, 940 [2d Dept. 2012]
("Mere sumlise, suspicion, speculation, and conjecture are insufficient to defeat a motion
for summary judgment") (Internal citations omitted). See also Sherman-Schi nan v
Costco Wholesale, Inc., 63 AD3d 1031 [2d Dept. 2009] (summary judgment motion
could not be defeated by feigned issues).
15. Even assuming, arguendo, that Ms. Canberg was a passenger in the
Romeo vehicle, there is not a scintilla of evidence that: 1) she was a Marine customer, or
2) Romeo was driving her in furtherance of Marine's business.
16. The desperate attempt to raise a question of fact in this regard by
characterizing Romeo's use of his vehicle at the time of the accident as being "on his way
associate,"
to a function for his business likewise fails. It is uncontroverted that at the
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time of the accident, Romeo was on his way to an engagement party-a purely personal
"H"
motive having nothing to do with Marine's work. (See Exhibit at pp.34-35; Exhibit
"l" 34).'
pp.31, Simply because the engagement party was for his then business partner,
Kristopher Dimon ("Dimon"), does not make itotherwise.
17. Nor is there any merit to Grabina's speculative assertion, which DiMonte
has adopted by reference, that based photograph appearing to show rope in the back of
potentially"
Romeo's vehicle, that the rope "could have been "used for [Marine's] work
purposes."
18. Not only did Romeo testify that he never used his pick-up truck for any
"H"
work-related things (see Exhibit at p.275, lines 3-13), but so did Dimon during his
"I"
deposition. (Exhibit at p.15, lines 7-15).
19. Further, when shown a photograph of the back of Romeo's vehicle at the
time of the accident2. Dimon denied that the white rope depicted therein was a type of
rope used on Marine's premises. After testifying to seeing more than one type of rope in
"i"
the photograph (Exhibit at p.97, lines 20-24), he went on to testify as follows:
"Q. I'm talking about the white one, have you ever seen that before on
your premises?
no." "I"
A. Not to my knowledge, (Exhibit at pp.97-98).
20. Accordingly, neither the photograph nor any other evidence supports
Grabina's speculative assertion that Romeo's vehicle might have been used in
furtherance of Marine's work.
11 remaining references to exhibits are to those annexed to the affirmation in support of Marints
motion.
3 Romeo had testifiedthatthat photograph showed the back of his vehicle atthe time of the
previously
"H"
accident. (Exhibit atp.339, lines 14-25).
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21. Likewise, without any merit is the assertion that the court is without
ability to determine ifRomeo was acting in the course of his employment at the time of
testimony."
the accident because "all that was submitted is self-serving deposition This
simply is not true.
22. Wholly overlooked and omitted is Dimon's deposition testimony which
was submitted in support of Marine's motion. (See Exhibit "I"). As testified to by
Dimon, Romeo's pickup truck was never used for anything having to do with Marine's
"I"
business (Exhibit at pp.15-17, 89), and Romeo's use of that vehicle at the time of the
"I"
accident had nothing to do with Marine's work. (Exhibit at pp.31, 34).
[1"
23. Further, as set forth in Lewis v Rutkovsky, 153 AD3d 450 Dept. 2017j
"self-serving,"
"[t]here is nothing in a legal sense, about deposition testimony that favors
the party giving it.Rather, testimony is said to be self-serving when it contradicts prior
here."
testimony-a situation that does not exist (Internal citation omitted). Nor does it
exist here, either. Romeo did not contradict any prior testimony. Rather, he was
steadfast in his testimony that he never used his pickup truck for Marine business.
Moreover, Romeo's testimony is not incredible on its face, but is supported by Dimon's
testimony.
24. Nor is there any evidentiary basis to support a claim that Ms. Canberg's
non-party deposition might provide relevant information, especially in the face of
overwhelming evidence, not speculation, that Romeo was driving his personal vehicle for
personal reasons at the time of the accident-and not in furtherance of Marine's business.
25. That discovery may be outstanding does not require denial of a summary
judgment motion. See Mogul v Baptiste, 161 AD3d 847, 848 [2d Dept. 2018] ("A grant
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of summary judgment is not premature merely because discovery has not been
completed") (intemal citations omitted); Lamore v Panapoulos, 121 AD3d 863 [2d Dept.
2014].
26. For a summary judgment motion to be denied as premature, the opposing
party must "provide an evidentiary basis to suggest that discovery might lead to relevant
evidence or that the facts essential to justify opposition to the motion were in the
party."
exclusive knowledge and control of the moving Mogul at 848 (internal citations
omitted). See also Lamore, 121 AD3d at 864 ("mere hope that evidence sufficient to
uncovered"
defeat the motion might be is an insufficient basis) (internal citations
omitted).
27. It has already been shown that there is no evidentiary basis to support the
claim that Ms. Canberg's non-party deposition might provide relevant information.
Despite the conclusory assertion that the other parties should be given an opportunity to
truck,"
depose Ms. Canberg as to "what she was doing in the pickup there is only
speculation that she was in Romeo's vehicle. Likewise3 there is only speculation that Ms.
Canberg might have been a Marine customer being driven by Romeo in connection with
Marine's business at the time of the accident. Such assertions are insufficient to defeat
Marine's motion.
28. Nor has it been shown that the movant, in this case, Marine, has
control"
"exclusive knowledge and of facts essential to oppose the motion, which
showing is required to be made when seeking to deny a motion for summary judgment on
the basis that it is premature, when like here, there is no evidentiary basis to support the
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claim that outstanding discovery might lead to relevant evidence. See Mogu/, 161 AD3d
at 848.
29. Further. itis disingenuous to claim that the timing of Marine's moving for
summary judgment only serves to prejudice the plaintiffs. Rather, any delay in the motion
will prejudice Marine in light of the fact that all the facts essential to oppose the motion
are known to the parties, which evidence demonstrates that Marine was neither the owner
of operator of vehicle being driven by Romeo, nor that the vehicle was being driven in
furtherance of itsbusiness.
30. Accordingly, there is no basis to deny Marine's motion as premature, or
on the basis that a question of fact exists as to whether Romeo was acting in the course of
his employment at the time of the accident, or as to his credibility.
Conclusion
31. For all the reasons set forth herein and in the affirmation in support of
Marine's motion, Marine should be granted summary judgment dismissing the
complaints of each plaintiff in this consolidated action, and that all cross-claims against it
should also be dismissed.
Dated: Garden City. New York
February 19, 2020
David F. Tavella
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF NASSAU )ss.:
I, Mary Cooke, being duly sworn, say: I am not a party to the action, am over 18
years of age and reside in Nassau County, New York:
On February 19, 2020 I served the within REPLY AFFIRMATION:
||Serviceby a ime
by depositing copy thereofin a post-paid
wrapper,in an official
depositoryunderthe exclusive
care
Mail and official
depositoryundertheexclusivecare of
and custody theU.S. Postal
Servicewithinthe New
York State, addressed to each of the following last known
persons at the address set forth after cach name:
|| Peasa"y a true copy
by delivering to each person named below
thereof personally 1 knew
at the address indicated
Sc:ved on the
each person served to be and described in said papers as a party
person mentioned themin:
Endividual
|X | Service
by by the
transmitting papersby electronic
means throughthe New York StateUnified Court System's
Electronic clectronic system.
filing I received an e-mail
fmm the New York State Electmnic System indicating
Filing
Mean was received and delivered
that the transmission to all counsel in this action:
[ ] Overnight a true
by depositing copy enclosed
thereof, in a wrapperaddressed as shown
below, intothe custody
of
UNITED PARCEL SERVICE for ovemight to the latest time
prior
delivery, designatedby that service for
ovemightdelivery.
Upon:
THE BIONGIORNO LAW FIRM, PLLC BLOCK O'TOOLE & MURPHY LLP
AttorneysforPlaintif Alicia M Arundel Attorneys for Plaintig ArthurA. Belli, Jr.,as
|415 Kellum Place, Suite 205 Parent and Natural Guardian of Stephanie
Garden City, New York 1 1530 Belli,deceased, and Administrator of the
(516) 741-4170 Estate of Stephanie Belli
1 Penn Plaza, Suite 5315
JOHN L. JULIANO, P.C. New York, New York 101 19
Attorneys for Plaintif
Suzanne Schulman, as Administratrix of the BONGIORNO, MONTIGLIO & PALMIER
Estate ofBrittany M Schuhnan, deceased Attorneys for Defendants, CARLOS F. PINO
39 Doyle Court and ULTIMATE CLASS LIMOUSINE, INC.
East Northport, New York 11731 200 Old Country Road, Suite 680
(631) 499-9300 Mineola, New York 11501
(516) 620-4490
PARIS & CHAlKEN PLLC
Attorneysfor Plaintif Olga Lipets LEWIS JOHS AVALLONE VILES, LLP
14 Penn Plaza, Suite 2000 Attorneys for Defendant,
New York, NY 10122 STEVEN D. ROMEO
(212) 742-0476 One CA Plaza, Suite 225
Islandia, New York 11749
LAW OFFICES OF JOSEPH J. TOCK (631) 755-010 )
Attorney for Plaintif Melissa A. Crai
963 Route 6 LAW OFFICES OF THOMAS M. VOLZ, PL1
Mahopac, New York 10541 Attorneys for Defendant,
(845) 628-8080 TOWN OF SOUTHOLD
280 Smithtown Boulevard
Nesconset, New York 11767
(631) 366-2700
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FRANK J. LAINE, P.C. Law Office of Vincent D. McNamara
Attorney for Plaintiff Mindy Grabina, as Administratrix Attorneys for Defendant,
of the Estate of Amy Grabina, and Mindy Grabina. County of Suffolk
Individually Tower Square
449 S, Oyster Bay Rd. 1045 Oyster Bay Road, Suite 1
Plainview, New York 11803 East Norwich, New York I1732
(516) 937-1010 (516)922-9100
SULLIVAN, PAPAIN, BLOCK, MCGRATH, LAW OFFICES OF ANDREA G. SAYWYERS
CANNAVO, P.C. Attorneys for Defendant.
Attorney for Plaintif; Steven Baruch as Administrator of Cabot Coach Builders, Inc.
the Estate ofLauren Baruch, deceased, and Steven d/b/a Royale Limousine
Haruch, Individually P.O. Box 9028
1140 Franklin Avenue, Suite 200 Melville, New York I 1747
Garden City, New York I1530 (631) 501-3077
(516) 742-0707
PEGALIS & ERICKSON, LLC (Notice Only)
Attorney for Plaintiff Joelle Dimonte
1 Hollow Lane, Suite 107
New Hyde Park, New York 11042
(516) 684-2900
MÅI(Y COOKE
Sworn to before me this
19th bruary, 2020
IC
KUILAM L SANCHEZ
NotaryPublic,
State of New
No. 01SA6040497 York
Qualified
in NassauCou
Commission Expires April
24.
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Index No's: 611214/2015/609082/2015/600055/2015/
Index No's.: 601831/2016/603536/2016/603364/2016/
Index No.: 607598/2016/614685/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTYOFSUFFOLK
ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as
Adminigratrix of the ESTATE OF BRITTANY SCHULMAN, deceased;
OLGA LIPETS; MINDY GRABINA, as Administratrix of the Estate of
AMY GRABINA, and MINDY GRABINA, Individually; STEVEN
BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased
and STEVEN BARUCH, Individually; JOELLE DIMONTE; and MELISS A.
CRAl, and ARTHUR A. BELLI, as parent and Natural Guardian of
STEPHANIE BELLl, deceased, and as the Administrator of THE ESTATE
OF STEPHANIE BELLI,
Plaintiffs,
against -
ULTIMATE CLASS UMOUSINE, INC., CARLOS PINO,
ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN
OF SOUTHOLD and COUNTY OF SUFFOLK, CABOT COACH BUILDERS,
1-5"
INC. d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES name being
fictitious but inteñded to be the remanufacturers, distributors and/or sellers of the
2007 Lincoln Town Car stretch limousine involved in the collision,
Defendants.
REPLY AFFIRMATION
CASCONE & KLUEPFEL, LLP.
Attorneys for Defendant -
ROMEO DIMON MARINE SERVICE
Office and Post Office Address, Telepitone
1399 Franklin Avenue, Suite 302
Garden City, New York 11530
(516) 747-1990
(516) 747-1992 Facsimile
To: ALL COUNSEL
Service ofa copy of thewithin
is hereby admitted,
Dated,2/19/2020
Attorney(s) for Defe;idaiit-ROMEO D1MON MARINE SERVICE, INC.
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FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------- -------------------X Index No,: ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as 61 1214/2015 Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015 deceased; OLGA LlPETS; MINDY GRABINA, as 603536/2016 Administratrix of the Estate of AMY GRABINA, and MINDY 600055/2016 GRABINA, Individually; STEVEN BARUCH, as 003364/2016 Administrator of the Estate of LAUREN BARUCH, deceased and 607598/2016 STEVEN BARUCH, Individually; JOELLE DIMONTE; 001831/201 6 MELISSA A. CRAI; and ARTHUR A. BELLI, as parent and 614685/2016 Natural Guardian of STEPHANIE BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI, REPLY AFFIRMATION (DiMonte) Plaintiffs, Honorable - against - John H. Rouse ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD and COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC. d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES 1-5" name being fictitious but intended to be the remanufacturers, distributors and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. ----....------ X DAVID F. TAVELLA, an attomey duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. 1 am Of Counsel to the law firm of CASCONE & KLUEPFEL, LLP, attorneys for defendant, ROMEO DIMON MARINE SERVICE, INC. (hereinafter referred to as "Marine") in the above-entitled matter, and as such, I am fully familiar with the facts and circumstances surrounding this matter. The source of my knowledge is the file maintained by this office during the course of itsdefense of this matter. 1 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 2. I am submitting this affirmation in reply to the untimely opposition of plaintiff, Joelle DiMonte (hereinafter, referred to as "DiMonte") to, and in further support of. Marine's motion for an order pursuant to CPLR §3212 granting it summary judgment dismissing the complaint of each plaintiff in this consolidated action insofar as asserted against Marine, and dismissing any and all cross-claims asserted against it, together with such other and further relief as to this court deems just and proper. 3. Marine has moved for summary judgment on the grounds that itcannot be held liable as it was neither the owner nor operator of the vehicle, a red pick-up truck, being driven by co-defendant, STEVEN ROMEO (hereinafter, referred to as "Romeo") that was involved in the accident, or was Romeo acting within the scope of his employment with Marine at the time of the accident. Accordingly, any negligence on Romeo's part cannot be imputed to Marine. 4. DiMonte opposes Marine's motion claiming that itshould be denied based on the arguments made in opposition to the motion by plaintiffs, MINDY GRABINA, as Administratrix of the Estate of AMY GRABINA, and MINDY GRABINA, individually (hereinatter, collectively referred to as "Grabina"), and by plaintiff, STEVEN BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased and Individually (hereinafter, collectively referred to as "Baruch"), whose arguments it adopts and incorporates by reference. "premature" 5. In opposing the motion, itis claimed that itshould be denied as "essential" because discovery, namely a non-party deposition, remains outstanding, and that there are questions of fact as to whether Romeo was acting in the course of his employment with Marine at the time of the accident, and as to his credibility. 2 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 6. Even if this court sees fitto consider DiMonte's untimely affirmation in opposition, which was not served at least seven days in advance of the return date of this motion as required pursuant to CPLR §2214(b) as set forth in Marine's notice of motion, but was served the afternoon prior to.the return date, itis nonetheless insufficient to raise a triable issue of fact in opposition to Marine's prima facie showing of its entitlement to summary judgment dismissing the complaint of each plaintiff in this consolidated action insofar as assened against Marine, and dismissing any and all cross-claims asserted against it. 7. In opposition to Marine's motion, Grabina claimed that Marine failed to evidence," demonstrate its prima facie entitlement to summary judgment "with sufficient and that the motion was premature because the deposition of non-party witness, Michelle Canberg ("Ms. Canberg") is outstanding. 8. The court is respectfully referred to Marine's reply to Grabina's affirmation in opposition, and to its affumation in reply to Baruch's opposition. As set evidence" forth in Marine's replies, itsupported itsmotion with "sufficient demonstrating its prima facie entitlement to summary judgment, and in opposition, no question of fact has been raised by any party. 9. Marine's evidence established not only that Romeo was the owner of the vehicle he was operating at the time of the accident (facts neither refuted, let alone, addressed by DiMonte or any party who has opposed the motion), but also that Romeo was not acting within the course of his employment at the time of the accident so that his negligence cannot be imputed to Marine. 3 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 10. With respect to the latter, it isargued in opposition both that a question of fact exists as to whether Romeo was acting within the course of his employment because he might have had a Marine customer as a passenger in his vehicle at the time of the accident (Ms. Canberg), and that the motion should be denied as premature because Ms. Canberg's non-party deposition is outstanding. 11. And while just short of outright claiming that Romeo is a liar and committed perjury, the plaintiffs whose arguments DiMonte adopts and incorporates by reference, also asserts that Marine's motion should be denied because an issue exists regarding Romeo's credibility, including whether Ms. Canberg was a passenger in his about." vehicle, and who knows "what else is he being untruthful To this end, they exists" speculate that "the realm of possibility that Romeo is "trying to shield Marine liability" from by not being truthful about facts surrounding the accident. 12. Such assertions are without any merit, and are speculative and disingenuous. They are based on deposition testimony of a non-party witness (Ms. Auer), an EMT who responded to the scene after the accident, and claims that Ms. Cranberg was a passenger in the Romeo vehicle. However. Ms. Auer does not have any first-hand knowledge that Ms. Canberg was a passenger in the Romeo vehicle at the time of the accident. "Q. How did you firstbecome aware of Michelle Canberg, that she was injured and claiming to have been in the pickup truck at the time of the collision? A. I did not say she was injured, she was standing there, someone else came up to me and told me that she was a passenger in that pickup truck, and that she needed to be evaluated, so I went over to her. Q. Who was that person that told you that she was in the pickup truck? that." A. I,to this day, cannot remember who told me 4 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 "A" (See Exhibit at pp.68-69, an unexecuted copy of the transcript of Ms. Auer's deposition testimony, which is annexed to the Porcelli aff. submitted on behalf of Grabina in opposition to the motion). 13. Moreover, testimony placing Ms. Canberg at the scene is not the same as proving that Romeo knew Ms. Canberg, and even if he did, that he knew she was at the scene. It does not raise any credibility issue, and is insufficient to defeat Marine's motion. Nor does it prove or raise a triable issue of fact that Ms. Canberg was a passenger in Romeo's vehicle, or that she was being driven by Romeo in furtherance of Marine's business. I4. These assertions are not based on fact, but are speculative, disingenuous, and without any merit. As such, they are insufficient to raise a triable issue of fact in opposition to Marine's prima facie showing. See Latuso v Maresca, 150 AD3d 712 [2d Dept. 2017]; Fredette v Tmen of Southampton, 95 AD3d 939, 940 [2d Dept. 2012] ("Mere sumlise, suspicion, speculation, and conjecture are insufficient to defeat a motion for summary judgment") (Internal citations omitted). See also Sherman-Schi nan v Costco Wholesale, Inc., 63 AD3d 1031 [2d Dept. 2009] (summary judgment motion could not be defeated by feigned issues). 15. Even assuming, arguendo, that Ms. Canberg was a passenger in the Romeo vehicle, there is not a scintilla of evidence that: 1) she was a Marine customer, or 2) Romeo was driving her in furtherance of Marine's business. 16. The desperate attempt to raise a question of fact in this regard by characterizing Romeo's use of his vehicle at the time of the accident as being "on his way associate," to a function for his business likewise fails. It is uncontroverted that at the 5 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 time of the accident, Romeo was on his way to an engagement party-a purely personal "H" motive having nothing to do with Marine's work. (See Exhibit at pp.34-35; Exhibit "l" 34).' pp.31, Simply because the engagement party was for his then business partner, Kristopher Dimon ("Dimon"), does not make itotherwise. 17. Nor is there any merit to Grabina's speculative assertion, which DiMonte has adopted by reference, that based photograph appearing to show rope in the back of potentially" Romeo's vehicle, that the rope "could have been "used for [Marine's] work purposes." 18. Not only did Romeo testify that he never used his pick-up truck for any "H" work-related things (see Exhibit at p.275, lines 3-13), but so did Dimon during his "I" deposition. (Exhibit at p.15, lines 7-15). 19. Further, when shown a photograph of the back of Romeo's vehicle at the time of the accident2. Dimon denied that the white rope depicted therein was a type of rope used on Marine's premises. After testifying to seeing more than one type of rope in "i" the photograph (Exhibit at p.97, lines 20-24), he went on to testify as follows: "Q. I'm talking about the white one, have you ever seen that before on your premises? no." "I" A. Not to my knowledge, (Exhibit at pp.97-98). 20. Accordingly, neither the photograph nor any other evidence supports Grabina's speculative assertion that Romeo's vehicle might have been used in furtherance of Marine's work. 11 remaining references to exhibits are to those annexed to the affirmation in support of Marints motion. 3 Romeo had testifiedthatthat photograph showed the back of his vehicle atthe time of the previously "H" accident. (Exhibit atp.339, lines 14-25). 6 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 21. Likewise, without any merit is the assertion that the court is without ability to determine ifRomeo was acting in the course of his employment at the time of testimony." the accident because "all that was submitted is self-serving deposition This simply is not true. 22. Wholly overlooked and omitted is Dimon's deposition testimony which was submitted in support of Marine's motion. (See Exhibit "I"). As testified to by Dimon, Romeo's pickup truck was never used for anything having to do with Marine's "I" business (Exhibit at pp.15-17, 89), and Romeo's use of that vehicle at the time of the "I" accident had nothing to do with Marine's work. (Exhibit at pp.31, 34). [1" 23. Further, as set forth in Lewis v Rutkovsky, 153 AD3d 450 Dept. 2017j "self-serving," "[t]here is nothing in a legal sense, about deposition testimony that favors the party giving it.Rather, testimony is said to be self-serving when it contradicts prior here." testimony-a situation that does not exist (Internal citation omitted). Nor does it exist here, either. Romeo did not contradict any prior testimony. Rather, he was steadfast in his testimony that he never used his pickup truck for Marine business. Moreover, Romeo's testimony is not incredible on its face, but is supported by Dimon's testimony. 24. Nor is there any evidentiary basis to support a claim that Ms. Canberg's non-party deposition might provide relevant information, especially in the face of overwhelming evidence, not speculation, that Romeo was driving his personal vehicle for personal reasons at the time of the accident-and not in furtherance of Marine's business. 25. That discovery may be outstanding does not require denial of a summary judgment motion. See Mogul v Baptiste, 161 AD3d 847, 848 [2d Dept. 2018] ("A grant 7 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 of summary judgment is not premature merely because discovery has not been completed") (intemal citations omitted); Lamore v Panapoulos, 121 AD3d 863 [2d Dept. 2014]. 26. For a summary judgment motion to be denied as premature, the opposing party must "provide an evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were in the party." exclusive knowledge and control of the moving Mogul at 848 (internal citations omitted). See also Lamore, 121 AD3d at 864 ("mere hope that evidence sufficient to uncovered" defeat the motion might be is an insufficient basis) (internal citations omitted). 27. It has already been shown that there is no evidentiary basis to support the claim that Ms. Canberg's non-party deposition might provide relevant information. Despite the conclusory assertion that the other parties should be given an opportunity to truck," depose Ms. Canberg as to "what she was doing in the pickup there is only speculation that she was in Romeo's vehicle. Likewise3 there is only speculation that Ms. Canberg might have been a Marine customer being driven by Romeo in connection with Marine's business at the time of the accident. Such assertions are insufficient to defeat Marine's motion. 28. Nor has it been shown that the movant, in this case, Marine, has control" "exclusive knowledge and of facts essential to oppose the motion, which showing is required to be made when seeking to deny a motion for summary judgment on the basis that it is premature, when like here, there is no evidentiary basis to support the 8 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 claim that outstanding discovery might lead to relevant evidence. See Mogu/, 161 AD3d at 848. 29. Further. itis disingenuous to claim that the timing of Marine's moving for summary judgment only serves to prejudice the plaintiffs. Rather, any delay in the motion will prejudice Marine in light of the fact that all the facts essential to oppose the motion are known to the parties, which evidence demonstrates that Marine was neither the owner of operator of vehicle being driven by Romeo, nor that the vehicle was being driven in furtherance of itsbusiness. 30. Accordingly, there is no basis to deny Marine's motion as premature, or on the basis that a question of fact exists as to whether Romeo was acting in the course of his employment at the time of the accident, or as to his credibility. Conclusion 31. For all the reasons set forth herein and in the affirmation in support of Marine's motion, Marine should be granted summary judgment dismissing the complaints of each plaintiff in this consolidated action, and that all cross-claims against it should also be dismissed. Dated: Garden City. New York February 19, 2020 David F. Tavella 9 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NASSAU )ss.: I, Mary Cooke, being duly sworn, say: I am not a party to the action, am over 18 years of age and reside in Nassau County, New York: On February 19, 2020 I served the within REPLY AFFIRMATION: ||Serviceby a ime by depositing copy thereofin a post-paid wrapper,in an official depositoryunderthe exclusive care Mail and official depositoryundertheexclusivecare of and custody theU.S. Postal Servicewithinthe New York State, addressed to each of the following last known persons at the address set forth after cach name: || Peasa"y a true copy by delivering to each person named below thereof personally 1 knew at the address indicated Sc:ved on the each person served to be and described in said papers as a party person mentioned themin: Endividual |X | Service by by the transmitting papersby electronic means throughthe New York StateUnified Court System's Electronic clectronic system. filing I received an e-mail fmm the New York State Electmnic System indicating Filing Mean was received and delivered that the transmission to all counsel in this action: [ ] Overnight a true by depositing copy enclosed thereof, in a wrapperaddressed as shown below, intothe custody of UNITED PARCEL SERVICE for ovemight to the latest time prior delivery, designatedby that service for ovemightdelivery. Upon: THE BIONGIORNO LAW FIRM, PLLC BLOCK O'TOOLE & MURPHY LLP AttorneysforPlaintif Alicia M Arundel Attorneys for Plaintig ArthurA. Belli, Jr.,as |415 Kellum Place, Suite 205 Parent and Natural Guardian of Stephanie Garden City, New York 1 1530 Belli,deceased, and Administrator of the (516) 741-4170 Estate of Stephanie Belli 1 Penn Plaza, Suite 5315 JOHN L. JULIANO, P.C. New York, New York 101 19 Attorneys for Plaintif Suzanne Schulman, as Administratrix of the BONGIORNO, MONTIGLIO & PALMIER Estate ofBrittany M Schuhnan, deceased Attorneys for Defendants, CARLOS F. PINO 39 Doyle Court and ULTIMATE CLASS LIMOUSINE, INC. East Northport, New York 11731 200 Old Country Road, Suite 680 (631) 499-9300 Mineola, New York 11501 (516) 620-4490 PARIS & CHAlKEN PLLC Attorneysfor Plaintif Olga Lipets LEWIS JOHS AVALLONE VILES, LLP 14 Penn Plaza, Suite 2000 Attorneys for Defendant, New York, NY 10122 STEVEN D. ROMEO (212) 742-0476 One CA Plaza, Suite 225 Islandia, New York 11749 LAW OFFICES OF JOSEPH J. TOCK (631) 755-010 ) Attorney for Plaintif Melissa A. Crai 963 Route 6 LAW OFFICES OF THOMAS M. VOLZ, PL1 Mahopac, New York 10541 Attorneys for Defendant, (845) 628-8080 TOWN OF SOUTHOLD 280 Smithtown Boulevard Nesconset, New York 11767 (631) 366-2700 10 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 FRANK J. LAINE, P.C. Law Office of Vincent D. McNamara Attorney for Plaintiff Mindy Grabina, as Administratrix Attorneys for Defendant, of the Estate of Amy Grabina, and Mindy Grabina. County of Suffolk Individually Tower Square 449 S, Oyster Bay Rd. 1045 Oyster Bay Road, Suite 1 Plainview, New York 11803 East Norwich, New York I1732 (516) 937-1010 (516)922-9100 SULLIVAN, PAPAIN, BLOCK, MCGRATH, LAW OFFICES OF ANDREA G. SAYWYERS CANNAVO, P.C. Attorneys for Defendant. Attorney for Plaintif; Steven Baruch as Administrator of Cabot Coach Builders, Inc. the Estate ofLauren Baruch, deceased, and Steven d/b/a Royale Limousine Haruch, Individually P.O. Box 9028 1140 Franklin Avenue, Suite 200 Melville, New York I 1747 Garden City, New York I1530 (631) 501-3077 (516) 742-0707 PEGALIS & ERICKSON, LLC (Notice Only) Attorney for Plaintiff Joelle Dimonte 1 Hollow Lane, Suite 107 New Hyde Park, New York 11042 (516) 684-2900 MÅI(Y COOKE Sworn to before me this 19th bruary, 2020 IC KUILAM L SANCHEZ NotaryPublic, State of New No. 01SA6040497 York Qualified in NassauCou Commission Expires April 24. 11 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:44 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 640 RECEIVED NYSCEF: 02/19/2020 Index No's: 611214/2015/609082/2015/600055/2015/ Index No's.: 601831/2016/603536/2016/603364/2016/ Index No.: 607598/2016/614685/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTYOFSUFFOLK ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as Adminigratrix of the ESTATE OF BRITTANY SCHULMAN, deceased; OLGA LIPETS; MINDY GRABINA, as Administratrix of the Estate of AMY GRABINA, and MINDY GRABINA, Individually; STEVEN BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased and STEVEN BARUCH, Individually; JOELLE DIMONTE; and MELISS A. CRAl, and ARTHUR A. BELLI, as parent and Natural Guardian of STEPHANIE BELLl, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI, Plaintiffs, against - ULTIMATE CLASS UMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD and COUNTY OF SUFFOLK, CABOT COACH BUILDERS, 1-5" INC. d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES name being fictitious but inteñded to be the remanufacturers, distributors and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. REPLY AFFIRMATION CASCONE & KLUEPFEL, LLP. Attorneys for Defendant - ROMEO DIMON MARINE SERVICE Office and Post Office Address, Telepitone 1399 Franklin Avenue, Suite 302 Garden City, New York 11530 (516) 747-1990 (516) 747-1992 Facsimile To: ALL COUNSEL Service ofa copy of thewithin is hereby admitted, Dated,2/19/2020 Attorney(s) for Defe;idaiit-ROMEO D1MON MARINE SERVICE, INC. 12 of 12