Preview
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---------------------------- -X Index No.:
ALICIA M. ARUNDEL, SUZANNE SCHULMAN. as 611214/2015
Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015
deceased; OLGA LIPETS; MINDY GRABINA, as 603536/2016
Administratrix of the Estate of AMY GRABlNA, 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; 001831/2016
MELISSA A. CRAI; and ARTHUR A. BELLI JR, as parent and 614685/2016
Natural Guardian of STEPHAN1E BELLI, deceased, and as the
Administrator of THE ESTATE OF STEPHANIE BELLI, REPLY AFFIRMATION
(Baruch)
Plaintiffs, Honorable John H. Rouse
- against -
ULTIMATE CL ASS 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
PAM ELA WOLFF COHEN, an attomey duly admitted to practice law before the Courts of
the State of New York, affmns the following to be true under penalties of perjury:
1. I am associated with 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
this matter. The source of my knowledge is the file maintained by this office during
surrounding
the course of itsdefense of thismatter.
1 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
2. I am submitting this affirmation in reply to the opposition of plaintiff, STEVEN
BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased and Individually
(hereinafter, collectively referred to as "Baruch") to, and in further support of, M.arine's motion for
an order pursuant to CPLR §3212 granting itsummary judgment dismissing the complaint of each
plaintiff in this consolidated action insofar as asserted against Marine, including Baruch's
complaiilt, and dismissing any and allcross-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 p.ick-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. Baruch opposes Marine's motion claiming that it should be denied as
"premature" "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 also adopts and incorporates by
reference the arguments advanced in opposition to the motion by plaintiff, MINDY GRABINA,
.as Administratrix of the Estate of AMY GRABINA, and MINDY GRABINA, Individually
(hereinafter, collectively referred to as "Grabina").
5. In opposition to Marine's motion, Grabina, whose arguments Baruch now adopts
and incorporates, claimed that Marine failed to demonstrate its prima facie entitlement to
evidence,"
judgment "with sufficient and that the motion was premature because the
summary
2
2 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
deposition of non-party witness, Michelle Canberg ("Ms. Canberg") is outstanding, as Baruch
also elaims.
6. The co.urt is respectfully referred to Marine's reply to Grabina's rnotion. As set
evidence"
forth therein, Marine supported its motion with "sufficient demonstrating its prima
facie entitlement to summary judgment, and in opposition, neither Grabina nor now Baruch raise
a triable question of fact.
7. 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 either
Grabina or Baruch), 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.
8. With respect to the latter, it is argued 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,
9. And while just short of outright claiming that Romeo is a liar and committed
perjury, Baruch also asserts that Marine's motion should be denied because issues exist
regarding Romeo's credibility, including whether Ms. Canberg was a passenger in his vehicle,
about."
and who knows "what else is he being untruthful To this end, Baruch further.speculates
exists" liability"
that "the realm of possibility Romeo is."trying to shield Marine from by not
being truthful about facts surrounding the.accident.
10. Baruch's 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
3
3 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
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
"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).
11. As such, Baruch's arguments are not based on facts, but on speculation.
However. speculation, surmise and conjecture are is insufficient to raise a triable issue of fact in
opposition to a prima facie showing. See Latuso v Maresca, 150 AD3d 712 [2d Dept. 2017];
Fredette v Town of Southampton, 95 AD3d 939, 940 [2d Dept. 2012] ("Mere surmise,
suspicion, speculation, arid conjecture are insufficient to defeat a motion for summary
judgment") (Internal citations omitted).
12. 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.
13. Baruch's 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 to a
"
function fbr his business associate likewise fails.It is uncontroverted that at the time of the
accident. Romeo was on his way to an engagement party-a purely personal motive having
4
4 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
"H" "I" 34).'
nothing to Marine's work. (See Exhibit at pp.34-35; Exhibit pp.31, Simply
because the engagement party was for his then business partner. Kristopher Dimon ("Dimon")a
does not make itotherwise.
14. Likewise without any merit is Baruch's assertion that the only evidence Marine
submitted to show that Romeo was not in the course of his employnient is his "self-
acting
serving"
deposition testimony. This simply is not true. Wholly onlitted by Baruch is Dimon's
deposition testimony. (See Exhibit "I"). As testified to by Dimon, Romeo s pickup truck was
"T"
never used for anything having to do with Marine's business (Exhibit at pp.15-17, 89). and
itomeo's use of that vehicle at the time of the accident had nothing to do with Marine's work.
"I"
(Exhibit at pp.31. 34).
[1"
15. Further, as set forth in Lewis v Ruthovsky, 153 AD3d 450 Dept. 2017] "[t]here
"self-serving,"
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 testimony-a situation
here.'
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.
as Baruch argues. but is supported by Dimon's testimony.
16. Nor is there basis to support a claim that Ms. Canberg's non-
any evidentiary
party deposition might provide relevant information. especially in the face of overwhelming
evidence, not speculation, that Romeo was driving his personal vehicle for personal reasoris at
the time of the accident-and not in furtherance of Marine's business.
17. 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 of
Im- Marine's motion.
All Ming references to exhibitsare tothose annexed to theaffirmation insupport of
5
5 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
summary judgment is not premature merely because discovery has not be completed") (internal
citations omitted); Lamore v Panapoulos, 121 AD3d 863 [2d Dept. 2014].
18. 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 exclusive knowledge and
party."
control of the moving Mogul at 848 (internal citations .omitted). See also Lamore, 121
uncovered"
AD3d at 864 ("mere hope that evidence sufficient to defeat the motion might be is an
insufficient basis) (internal citations omitted).
19. It has already been shown that there is no evidentiary basis to support Baruch's
(and Grabina's) position that Ms. Canberg's non-party deposition might provide relevant
information. Despite Barach's conclusory assertion that it 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 might have been a Marine customer being driven by Romero in connection with
Marine's business at the time of the accident. Such assertions are insufficient to defeat
Marine's.motion.
20. Nor has it been shown that the movant, in this case, Marine, has "exclusive
control"
knowledge and of facts essential to oppose the motion, which showing is required to be
made when seeking to deny a motiorr for summary judgment on the basis that it is premature,
when like here, there is no evidentiary basis to support the claim that outstanding discovery
might lead to relevant evidence. See Mogu/, 161 AD3d at 848.
21. Further. it isdisingenuous of Baruch to claim that the timing of Marine's moving
for summary judgment only serves to prejudice the plaintitTs. Rather, any delay in the motion
will prejudice Marine in light of the fact that all the facts essential to oppose the motion are
6
6 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
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.
22. 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.
Con_clusion
23. 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 plaintitY
in this consolidated action, and that allcross-claims against itshould also be dismissed.
Dated: Garden City, New York
February 14, 2020
Pamela Wolff Cohen
7
7 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF NASSAU )Ss.:
I,JENNIFER OLIVERI, being duly sworn, say: I am not a party to the action, am over 18 years of
age and reside at Nassau County, New York:
On February 14, 2020 I served the within REPLY AFFIRMATION
[ | Service
by a true copy thereof in a post-paid wrapper, in an oflicial
by depositing depositoryunderthe care and official
exclusive under the
depository
Mail exclusivecare and custody
ofthe U.S.Postal Service
withinthe New York State, addressed to each of
the PAMMng persons at the last
known address set forth aller
each name:
[X|Serviceby the papers by electronic
by transmitting means throughthe New YorkState E-File
System. 1received an e-mail
from the New YorkState E-
EIcetronic File System indicating was received and delivered
that the transmission to all counsel in this action.
Means
| |Personal a true copy thereof personally
by delivering to each person named below I knew each person served to be the person
at the address indicated.
Served on mentionedand described in said papers as a party
therein:
Individual
| IServiceby by tc±±¡; the papers by clectronic
means to the ic!cphane number which
listed below. number was designated by the attomey
for such
Electronic the equipment
purpose. I received a signal from of the attomey that the transmission
served indiming I also deposited a true
was received.
Means copy of the papers, enclosed in a post-paid
wrapper,in an official
depositoryunder the care and custody of the U.S. Postal Service. addressed
Via Fax at the address set forth after each name:
to the attomey
[ | Overnight a true copy thereof,
by depositing enclosedin a wrapper
addressed as shown into
beloiv. the custody
ofUNITED PARCEL SERVICE for
ovemight prior
delivery, to the latest time designated by that service for ovemight
delivery.
TO:
SEE ATTACHED SERVICE LIST
FER OLIVERI
Sworn to before rne this
14th
day of February, 2020
Notary Public
DIANA M. MADERA
Notary Public, Stateof New York
No. 01MA6309591
Qualified inQ ueens County
Comrnission Expires 08/11/201
8 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
TO:
THE BONGIORNO LAW FIRM, PLLC BLOCK O'TOOLE & MURPHY, LLP.
Attorneys for Plaintiff - ARUNDEL for Plaintiff - BELLI
Attorney
1415 Kellum Boulevard, Suite 205 1 Pennsylvania Plaza, Suite 5315
Garden City, New York 11530 New York, NY 10119
(516) 741-4170 (212) 736-5300
JOHN L. JULIANO, P.C. BONGIORNO MONTIGLIO & PALMIERI, PLLC
Attorneys for Plaintiff - ESTATE OF SCHULMAN Attorneys for Defendants
39 Doyle Court CARLOS F. PINO and
East Northport, New York 11731 ULTIMATE CLASS LIMOUSINE, INC.
(631) 499-9300 200 Old Country Road
Mineola, New York 11501
PARIS & CHAIKIN, PLLC (516.) 620-4490
Attomeys for Plaintiff - LIPETS
14 Penn Plaza, Suite 2202 LEWIS JOHS AVALLONE VILES, LLP
New York, New York 10122 Attorneys for Defendant
(212) 741-0476 STEVEN D. ROMEO
One CA Plaza, Suite 225
FRANK J. LAINE, P.C. Islandia, New York 11749
Attorneys for Plaintiff - ESTATE OF GRABINA 755-0101
(631)
449 South Oyster Bay Road
Plainview, NY I 1803 LAW OFFICE OF THOMAS S. VOLZ, PLLC
(516) 937-1010 Attorneys for Defendant
TOWN OF SOUTHOLD
SULLIVAN PAPAIN BLOCK 280 Smithtown Boulevard
McGRATH & CANNVO, P.C. Nesconset, New York 11767
Attorneys for Plaintiff- ESTATE BARUCH 366-2700
(631)
1 140 Franklin Avenue, Suite 200
Garden City, New York 11539 LAW OFFICE OF VINCENT MCNAMARA
(516) 742-0707 Attorneys for Defendant
COUNTY OF SUFFOLK
PEGALIS & ERICKSON, LLC. 1045 Oyster Bay Road, Suite 1
Attorneys for Plaintiff - DIMONTE East Norwich, New York 11732
One Hollow Lane, Suite 107 (516) 922-9100
Lake Success, New York 11042
(516) 684-2939 LAW OFFICE OF ANDREA S. SAWYERS
Attorneys for Defendant
JOSEPH L TOCK CABOT COACH BUILDERS, INC.
Attorneys for Plaintiff - CRAI P.O. Box 2903
963 Route 6 Hartford, CT 06104-2903
Mahopac, New York 10541 (631) 501-3100
(845) 628 8080
9 of 10
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020
Index #s: 611214/15, 609082/2015, 600055/2016, 603536/2016, 003364/2016,
607598/2016, 001831/2016, 614685/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
ALICIA M. ARUNDEL; SUZANNE SCHULMAN, AS ADMINISTRATRIX
OF THE ESTATE OF BRITTNEY M. SCHULMAN, DECEASED; OLGA
LIPETS, MINDY GRABINA, AS ADMINISTRATRIX OF THE ESTATE
OF AMY GRABINA, AND MINDY GRABINA, INDIVIDUALLY;
STEVEN BARUCH, DECEASED, AND STEVEN BARUCH,
INDIVIDUALLY; JOELLE DIMONTE; AND MELISSA A. CRAI ;
Plaintifs,
- against -
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO
DIMON MARINE SERVICE, INC., STEVEN ROMERO, TOWN OF
SOUTHOLD, COUNTY OF SUFFOLK, CABOT COACH BUILDERS,
INC. d/b/a ROYALE LIMOUSINE, AND "XYZ COMPANIES 1-5", ET AL.
Defendants,
REPLY AFFIRMATION
CASCONE & KLUEPFEL, LLP.
Attorneys for Defendant - ROMEO DIMON MARINE SERVICES, INC.
Ofice and Post Office Address, Telepltone
1399 Franklin Avenue
Suite 302
Garden City, New York 11530
(516) 747-1990
(516)747-1992 Facsimile
To: ALL COUNSEL
Service of a copyofthe within
is hereby edmitt4
Dated,
Attorney(s) forDefen dent - ROMEO DIMON MARENE SERVICES, I.NC.
10 of 10
Preview
FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---------------------------- -X Index No.: ALICIA M. ARUNDEL, SUZANNE SCHULMAN. as 611214/2015 Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015 deceased; OLGA LIPETS; MINDY GRABINA, as 603536/2016 Administratrix of the Estate of AMY GRABlNA, 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; 001831/2016 MELISSA A. CRAI; and ARTHUR A. BELLI JR, as parent and 614685/2016 Natural Guardian of STEPHAN1E BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI, REPLY AFFIRMATION (Baruch) Plaintiffs, Honorable John H. Rouse - against - ULTIMATE CL ASS 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 PAM ELA WOLFF COHEN, an attomey duly admitted to practice law before the Courts of the State of New York, affmns the following to be true under penalties of perjury: 1. I am associated with 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 this matter. The source of my knowledge is the file maintained by this office during surrounding the course of itsdefense of thismatter. 1 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 2. I am submitting this affirmation in reply to the opposition of plaintiff, STEVEN BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased and Individually (hereinafter, collectively referred to as "Baruch") to, and in further support of, M.arine's motion for an order pursuant to CPLR §3212 granting itsummary judgment dismissing the complaint of each plaintiff in this consolidated action insofar as asserted against Marine, including Baruch's complaiilt, and dismissing any and allcross-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 p.ick-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. Baruch opposes Marine's motion claiming that it should be denied as "premature" "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 also adopts and incorporates by reference the arguments advanced in opposition to the motion by plaintiff, MINDY GRABINA, .as Administratrix of the Estate of AMY GRABINA, and MINDY GRABINA, Individually (hereinafter, collectively referred to as "Grabina"). 5. In opposition to Marine's motion, Grabina, whose arguments Baruch now adopts and incorporates, claimed that Marine failed to demonstrate its prima facie entitlement to evidence," judgment "with sufficient and that the motion was premature because the summary 2 2 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 deposition of non-party witness, Michelle Canberg ("Ms. Canberg") is outstanding, as Baruch also elaims. 6. The co.urt is respectfully referred to Marine's reply to Grabina's rnotion. As set evidence" forth therein, Marine supported its motion with "sufficient demonstrating its prima facie entitlement to summary judgment, and in opposition, neither Grabina nor now Baruch raise a triable question of fact. 7. 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 either Grabina or Baruch), 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. 8. With respect to the latter, it is argued 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, 9. And while just short of outright claiming that Romeo is a liar and committed perjury, Baruch also asserts that Marine's motion should be denied because issues exist regarding Romeo's credibility, including whether Ms. Canberg was a passenger in his vehicle, about." and who knows "what else is he being untruthful To this end, Baruch further.speculates exists" liability" that "the realm of possibility Romeo is."trying to shield Marine from by not being truthful about facts surrounding the.accident. 10. Baruch's 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 3 3 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 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 "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). 11. As such, Baruch's arguments are not based on facts, but on speculation. However. speculation, surmise and conjecture are is insufficient to raise a triable issue of fact in opposition to a prima facie showing. See Latuso v Maresca, 150 AD3d 712 [2d Dept. 2017]; Fredette v Town of Southampton, 95 AD3d 939, 940 [2d Dept. 2012] ("Mere surmise, suspicion, speculation, arid conjecture are insufficient to defeat a motion for summary judgment") (Internal citations omitted). 12. 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. 13. Baruch's 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 to a " function fbr his business associate likewise fails.It is uncontroverted that at the time of the accident. Romeo was on his way to an engagement party-a purely personal motive having 4 4 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 "H" "I" 34).' nothing to Marine's work. (See Exhibit at pp.34-35; Exhibit pp.31, Simply because the engagement party was for his then business partner. Kristopher Dimon ("Dimon")a does not make itotherwise. 14. Likewise without any merit is Baruch's assertion that the only evidence Marine submitted to show that Romeo was not in the course of his employnient is his "self- acting serving" deposition testimony. This simply is not true. Wholly onlitted by Baruch is Dimon's deposition testimony. (See Exhibit "I"). As testified to by Dimon, Romeo s pickup truck was "T" never used for anything having to do with Marine's business (Exhibit at pp.15-17, 89). and itomeo's use of that vehicle at the time of the accident had nothing to do with Marine's work. "I" (Exhibit at pp.31. 34). [1" 15. Further, as set forth in Lewis v Ruthovsky, 153 AD3d 450 Dept. 2017] "[t]here "self-serving," 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 testimony-a situation here.' 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. as Baruch argues. but is supported by Dimon's testimony. 16. Nor is there basis to support a claim that Ms. Canberg's non- any evidentiary party deposition might provide relevant information. especially in the face of overwhelming evidence, not speculation, that Romeo was driving his personal vehicle for personal reasoris at the time of the accident-and not in furtherance of Marine's business. 17. 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 of Im- Marine's motion. All Ming references to exhibitsare tothose annexed to theaffirmation insupport of 5 5 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 summary judgment is not premature merely because discovery has not be completed") (internal citations omitted); Lamore v Panapoulos, 121 AD3d 863 [2d Dept. 2014]. 18. 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 exclusive knowledge and party." control of the moving Mogul at 848 (internal citations .omitted). See also Lamore, 121 uncovered" AD3d at 864 ("mere hope that evidence sufficient to defeat the motion might be is an insufficient basis) (internal citations omitted). 19. It has already been shown that there is no evidentiary basis to support Baruch's (and Grabina's) position that Ms. Canberg's non-party deposition might provide relevant information. Despite Barach's conclusory assertion that it 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 might have been a Marine customer being driven by Romero in connection with Marine's business at the time of the accident. Such assertions are insufficient to defeat Marine's.motion. 20. Nor has it been shown that the movant, in this case, Marine, has "exclusive control" knowledge and of facts essential to oppose the motion, which showing is required to be made when seeking to deny a motiorr for summary judgment on the basis that it is premature, when like here, there is no evidentiary basis to support the claim that outstanding discovery might lead to relevant evidence. See Mogu/, 161 AD3d at 848. 21. Further. it isdisingenuous of Baruch to claim that the timing of Marine's moving for summary judgment only serves to prejudice the plaintitTs. Rather, any delay in the motion will prejudice Marine in light of the fact that all the facts essential to oppose the motion are 6 6 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 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. 22. 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. Con_clusion 23. 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 plaintitY in this consolidated action, and that allcross-claims against itshould also be dismissed. Dated: Garden City, New York February 14, 2020 Pamela Wolff Cohen 7 7 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NASSAU )Ss.: I,JENNIFER OLIVERI, being duly sworn, say: I am not a party to the action, am over 18 years of age and reside at Nassau County, New York: On February 14, 2020 I served the within REPLY AFFIRMATION [ | Service by a true copy thereof in a post-paid wrapper, in an oflicial by depositing depositoryunderthe care and official exclusive under the depository Mail exclusivecare and custody ofthe U.S.Postal Service withinthe New York State, addressed to each of the PAMMng persons at the last known address set forth aller each name: [X|Serviceby the papers by electronic by transmitting means throughthe New YorkState E-File System. 1received an e-mail from the New YorkState E- EIcetronic File System indicating was received and delivered that the transmission to all counsel in this action. Means | |Personal a true copy thereof personally by delivering to each person named below I knew each person served to be the person at the address indicated. Served on mentionedand described in said papers as a party therein: Individual | IServiceby by tc±±¡; the papers by clectronic means to the ic!cphane number which listed below. number was designated by the attomey for such Electronic the equipment purpose. I received a signal from of the attomey that the transmission served indiming I also deposited a true was received. Means copy of the papers, enclosed in a post-paid wrapper,in an official depositoryunder the care and custody of the U.S. Postal Service. addressed Via Fax at the address set forth after each name: to the attomey [ | Overnight a true copy thereof, by depositing enclosedin a wrapper addressed as shown into beloiv. the custody ofUNITED PARCEL SERVICE for ovemight prior delivery, to the latest time designated by that service for ovemight delivery. TO: SEE ATTACHED SERVICE LIST FER OLIVERI Sworn to before rne this 14th day of February, 2020 Notary Public DIANA M. MADERA Notary Public, Stateof New York No. 01MA6309591 Qualified inQ ueens County Comrnission Expires 08/11/201 8 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 TO: THE BONGIORNO LAW FIRM, PLLC BLOCK O'TOOLE & MURPHY, LLP. Attorneys for Plaintiff - ARUNDEL for Plaintiff - BELLI Attorney 1415 Kellum Boulevard, Suite 205 1 Pennsylvania Plaza, Suite 5315 Garden City, New York 11530 New York, NY 10119 (516) 741-4170 (212) 736-5300 JOHN L. JULIANO, P.C. BONGIORNO MONTIGLIO & PALMIERI, PLLC Attorneys for Plaintiff - ESTATE OF SCHULMAN Attorneys for Defendants 39 Doyle Court CARLOS F. PINO and East Northport, New York 11731 ULTIMATE CLASS LIMOUSINE, INC. (631) 499-9300 200 Old Country Road Mineola, New York 11501 PARIS & CHAIKIN, PLLC (516.) 620-4490 Attomeys for Plaintiff - LIPETS 14 Penn Plaza, Suite 2202 LEWIS JOHS AVALLONE VILES, LLP New York, New York 10122 Attorneys for Defendant (212) 741-0476 STEVEN D. ROMEO One CA Plaza, Suite 225 FRANK J. LAINE, P.C. Islandia, New York 11749 Attorneys for Plaintiff - ESTATE OF GRABINA 755-0101 (631) 449 South Oyster Bay Road Plainview, NY I 1803 LAW OFFICE OF THOMAS S. VOLZ, PLLC (516) 937-1010 Attorneys for Defendant TOWN OF SOUTHOLD SULLIVAN PAPAIN BLOCK 280 Smithtown Boulevard McGRATH & CANNVO, P.C. Nesconset, New York 11767 Attorneys for Plaintiff- ESTATE BARUCH 366-2700 (631) 1 140 Franklin Avenue, Suite 200 Garden City, New York 11539 LAW OFFICE OF VINCENT MCNAMARA (516) 742-0707 Attorneys for Defendant COUNTY OF SUFFOLK PEGALIS & ERICKSON, LLC. 1045 Oyster Bay Road, Suite 1 Attorneys for Plaintiff - DIMONTE East Norwich, New York 11732 One Hollow Lane, Suite 107 (516) 922-9100 Lake Success, New York 11042 (516) 684-2939 LAW OFFICE OF ANDREA S. SAWYERS Attorneys for Defendant JOSEPH L TOCK CABOT COACH BUILDERS, INC. Attorneys for Plaintiff - CRAI P.O. Box 2903 963 Route 6 Hartford, CT 06104-2903 Mahopac, New York 10541 (631) 501-3100 (845) 628 8080 9 of 10 FILED: SUFFOLK COUNTY CLERK 02/14/2020 01:49 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 626 RECEIVED NYSCEF: 02/14/2020 Index #s: 611214/15, 609082/2015, 600055/2016, 603536/2016, 003364/2016, 607598/2016, 001831/2016, 614685/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ALICIA M. ARUNDEL; SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE ESTATE OF BRITTNEY M. SCHULMAN, DECEASED; OLGA LIPETS, MINDY GRABINA, AS ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA, AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH, DECEASED, AND STEVEN BARUCH, INDIVIDUALLY; JOELLE DIMONTE; AND MELISSA A. CRAI ; Plaintifs, - against - ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMERO, TOWN OF SOUTHOLD, COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC. d/b/a ROYALE LIMOUSINE, AND "XYZ COMPANIES 1-5", ET AL. Defendants, REPLY AFFIRMATION CASCONE & KLUEPFEL, LLP. Attorneys for Defendant - ROMEO DIMON MARINE SERVICES, INC. Ofice and Post Office Address, Telepltone 1399 Franklin Avenue Suite 302 Garden City, New York 11530 (516) 747-1990 (516)747-1992 Facsimile To: ALL COUNSEL Service of a copyofthe within is hereby edmitt4 Dated, Attorney(s) forDefen dent - ROMEO DIMON MARENE SERVICES, I.NC. 10 of 10