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FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015
NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020
SUPPEME COURT OF THE STATE OF NEW YORK
CO Y OF SUFFOLK
- - - - - - - - - - - - - - - - - - - X Index No:
ALICIA M. ARUNDEL; SUZANNE SCHULMAN, as 611214/2015
Administratrix of the Estate of BRITTNEY 6 ·382, _ ,15
M. SCHULMAN, deceased; OLGA LIPETS; 603536/2016
MIE Y GRABINA, as Administratrix of the 67C55 '^016
Estate of AMY GRABINA, and MINDY GRABINA, 003364 .016
Individually; STEVEN BARUCH, as 607598/2016
Administrator of the Estate of LAUREN 0F A31 016
BARUCH, deceased and STEVEN BARUCH, 614685/2016
Individually; JOELLE DIMONTE; and MELISSA
A. CRAI, and ARTHUR A. BELLI, JR. as
parent and Natural Guardian of STEPHANIE AFFIRMATION IN
BELLI, deceased, and as the Administrator OPPOSITION TO MOTION
of THE ESTATE OF STEPHANIE BELLI, FOR SUMMARY JUDGMENT
Plaintiffs,
-against-
ULTIMATE CLASS LIMOUSINE, INC., CARLOS Honorable: John Rouse
PINO, ROMEO DIMON MARINE SERVICE, INC.,
STEVEN ROMEO, TOWN OF SOUTHOLD, COUNTY
OF SUFFOLK, CABOT COACH BUILDERS, INC.,
d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES Motion Return Date:
1-5"
name being fictitious but intended 2/19/2020
to be the remanufacturers, distributors,
and/or sellers of the 2007 Lincoln Town
Car stretch limousine involved in the
collision,
Defendants.
- - - - - - - - - - - - - - - - - - - X
Joanne Porcelli, an attorney admitted to practice in the
State of New York, affirms the following under the penalties of
perjury:
1. I am an associate with the Law Firm of Frank J. Laine,
PC, and attorney of record for the Plaintiff, NDY
GP TNA, as Administratrix of the Estate of AMY GRABINA,
and MINDY GRABINA, Individually, in the above action,
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and as such am thoroughly conversant with the facts and
circumstances herein based upon the contents of the file
maintained by this office.
2. I make this Affirmation in Opposition to Defendant,
ROMEO DIMON MARINE SERVICE, INC.'s, ("MARINE") motion
for an Order;
(a) Pursuant to CPLR §3212 granting it Summary
Judgement dismissing the complaint of each
Plaintiff in this consolidated action insofar
as asserted against it.
(b) Dismissing any and all cross-claims against
it.
(b) And for such other and further relief this
Court deems just and proper.
3. As will be discussed below, Defendant's motion should be
denied in it's entirely as it is premature and there
exist serious question of fact which must be flushed out
before any party ought to have a claim against it
dismissed, to the detriment of the Plaintiffs herein.
4. The movant, MARINE, argues that the case against it
ought to be dismissed based on its claim that it was
neither the owner of the vehicle driven by Co-Defendant,
ROMEO, at the time of the collision, nor was ROMEO
acting within the scope of his employment with MARINE.
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RELEVANT FACTS AND PROCEDURAL HISTORY
5. This .nso) iated matter arises out of a motor vehicle
collision which occurred on July 18, 2015, on County
Road 48 at Depot Lane, in the Town of Southold and
involved a limousine which was being driven by
co-defendant, CARLOS PINO and was owned by Co-Defendant,
ULTI E C S LIMOUSINE, INC., and a second vehicle,
which was owned and operated by Co-Defendant STEVEN
ROMEO (ROMEO.) Plaintiff decedent, AMY GRABINA, was a
passenger in the limousine.
6. In the interest of avoiding repetitiveness, respondent
herein directs the Honorable Court's attention to
movant's motion papers as same relates to the Relevant
Procedural History of this matter.
DEFENDANTS'
MOTION MUST BE DENIED AS DISCOVERY IS NOT COMPLETE,
MAKING THE MOTION PREMATURE
7. It is respectfully submitted that the herein motion is
premature and, for the reasons which are discussed
below, must be denied.
8. In his deposition of June Co-
25, 2019, endant, ROMEO,
testified that he was the co-owner of Defendant, MARINE,
(see Exhibit "H", annexed to movant's papers at page 12,
line 21 and that on July 18, 2015, Defendant, MARINE,
was a marine service business, which repaired boats and
engines (see Exhibit , a .é×ee . 's sper at
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page 15, line 15.)
9. Defendant, ROMEO, further tes fied that he was the
owner of a red pick up truck at the time of the accident
? movant'
at issue Ex t "H", anre . d to s
papers at page 21, lines 10-12); that at the time of the
accident here at issu was going to Kris Dimon's
house (see Exhibit "H", annexed to movant's papers at
Kris'
page 34, line 7 ); and that he was going to house
to attend an engagement party for Kris (see Exhibit "H",
annexed to movant's papers at page 35, lines 6-8".)
10. Defendant, ROMEO, testified that on the day here at
issue, he worked at Co-Defendant, MARINE, from 8:00 a.m.
until 12:00 noon (see Exhibit "H", annexed to movant's
papers at page 35, lines 13-23 and page 36, lines 2-17.)
11. Of paramount importance is that Co-Defendant, ROMEO,
testified, in part, that he did not have any passengers
in his vehicle at the time of the accident (see Exhibit
"H", annexed to movant's papers at page 317, lines
6-8".)
12. However, there is clear testimony from non-party
witness, Janet Lynn Auer, ("MRS. AUER")who testified on
November 13, 2019, that on July 18, 2015 she was present
at the herein subject collision, which occurred at the
intersection of County Road 48 and Depot Lane, that she
arrived right u: the collision ened, that e was
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a lieutenant with the hold Fire Department, that she
was acting in the capacity of EMT-B and was also an
exterior firefighter (See Exhibit "A", page 7, lines
17-25 and 8, lines 2-10.)
13. MRS. AUER testified that on July 18, 2015 she arrived at
the scene of the herein collision (see Exhibit "A", page
11, lines 16-24.)
14. When she arrived at the scene, s e told her that a
woman was in the red pickup truck and needed to be
looked at. That when she walked over to that woman and
asked if she was in the red pickup truck she was told
that she was a passenger in the front seat of the red
pickup and that she extricated. MRS. AUER also testified
that she told the woman she needed to be looked at but
was told that she could not be seen at the accident
scene so she was taken to the police command unit (see
Exhibit "A", page 30, 19-25 and 31, lines 2-19.)
15. During her deposition of November 13, 2019, MRS. AUER
testified that she generated a patient care report
(PCR), for Michelle g, which was marked as
"1"
Plaintiff's Exhibit for identification, and is
annexed hereto as Exhibit "B".
16. further testified that the report was ed by
her at the scene of the collision which occurred on July
18, 2015 (See Exhibit "A", page 27, lines 10-15.)
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17. She clarified that she mpleted that portion of
patient care report (PCR) which was described as the
physical objective as ent and noted her name the
bottom of the report (see Exhibit "A", page 27, lines
20-25) and that Chief Craig Goldsmith also wrote on the
form, acting as her s e while she took the patient's
vitals (See Exhibit "A", page 28, lines 3-7.)
18. Of paramount importance is MRS. AUER's testimony
relating to her notes which appear in the patient care
report (PCR), as follows:
(see Exhibit "A", page 29, lines 4-18.)
Q. If you would, would you please read what you
wrote?
attention" --
A. "Patient refused all medical
Q. I'm patient refused --
sorry,
A. "Refused all medical attention. Patient self
extricated and stood on the side of the road,
non-transport. Patient was in the back of the
us"
·d unit with
Q. I'm sorry, police?
A. Police command unit while being assessed.
Patient states she in red pickup truck,
front passenger seat, that impacted limo.
Patient states no injuries, refusing
used."
transport. Seat belt
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19. MRS. AUER was asked if there came a time when she
learned who this person was and she responded that she
learned her name was MICHELLE CA E G (see Exhibit
"A",page 29, lines 19-24.)
20. MRS. AUER testified that the information obtained for
her report came directly from MICHELLE CANBERG (see
Exhibit "A", page 30, lines 12-15.)
21. In fact, she was specifically told by MS. CANBERG that
she was in the red pick up truck, front passenger seat
(see Exhibit "A", page 35, lines 10-13.)
22. According to MRS. AUER's testimony, another firefighter
also told her that MS. CANBERG was in the pick up truck
and needed to be assessed for a PCR report (see Exhibit
"A", page 70, lines 5-10.)
23. MS. AUER testified that MS. CANBERG did not want to be
seen at the scene of the accident but did not say why
(see Exhibit "A", page 32, lines 4-6)and that she needed
to be assessed in the m and center because she did not
want to be seen there (see Exhibit "A", page 73, lines
15-21.)
24. While MS. CANBERG did not give a reason for not wanting
e 36 n at the sCene of the accident here at i su s it
may have been because she was a customer who was being
transported in connection with Co-Defendant's, MARINE,
business.
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25. With regard to MRS. AUER's PCR report, she testified as
follows: (see Exhibit "A", page 80, lines 11-20.)
Q. This PCR report that you prepared, was that
peppered in the ordinary course of business of
Southold Fire Department?
A. Yes.
Q. Was it prepared at the time of the accident,
at or about the time of the accident?
A. Yes.
Q. To your knowledge, is the information that you
put on this report truthful?
A. Yes.
26. There are multiple clear and absolute reasons as to why
this Honorable Court ought not consider dismissing the
herein action against the movant, MARINE.
27. As noted above, MR. ROMEO testified that he did not have
any passengers in his vehicle at the time of the
collision here at issue (see Exhibit "H", annexed to
movant's papers at page 317, lines 6-8") while MRS. AUER
testified (See above) to the existence of an individual
who told her that she was a passenger in the red pickup
truck at the time of the collision here at issue.
28. The apparent passenger in the red pick up truck,
MICHELLE CANBERG, has been subpoenaed to determine if
she was a customer being transported in connection with
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Defendant's, MARINE, business, but failed to appear as
ordered (See Exhibit "C".)
29. Defendant ROMEO, however, testified that he could not
remember if he knew someone by the name of MICHELLE
CANBERG (see Exhibit "H", annexed to movant's papers at
page 317, lines 9-18".)
30. As noted previously and in light of the abovementioned a
passenger, MICHELLE CANBERG, in the red pick-up truck's
failure to appear for the subpoena deposition, MR.
ROMEO's denial of her existence and MRS. AUER lack of
inquiry as to who she was or what she was doing in the
red pickup truck at the time of the collision, it is
conceivable that she have been a customer of Co-
may
Defendant, MARINE, who MR. ROMEO was driving somewhere
at the time of the collision. If so, MR. ROMEO would
have been using the red pick up truck in the course of
his employment, making the case against MARINE perfectly
viable and not subject to this early requested
dismissal.
31. Clearly the deposition of a possible passenger in MR.
ROMEO's car is paramount in the matter here at issue
and, as such, the case against the movant cannot be
dismissed at this time.
32. Furthermore, during his deposition, MR. ROMEO was asked
about e.te nttats f .e ack of his truck and he
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testified that there were no boat parts in the back of
"H"
his truck (See Exhibit of Movant's motion papers,
page 340, line 2-4.)
33. However, a closer look at the photo marked as Exhibit
"5"
dated June 26, 2019, and annexed hereto as
"D"
Plaintiff's Exhibit shows what appear to be rope
which could potentially have been used for purposes of
securing boats at the work location of the movant
herein, MARINE. This would mean that the MR. ROMEO's
vehicle was used for work purposes and the movant's
argument that there is no connection between MR. ROMEO's
vehicle and the movant entity, MARINE, is incorrect and
premature.
34. In fact, during his June 26, 2019 deposition, MR. DIMON,
who was the president and co-owner of Romeo Dimon Marine
Services on July 18, 2015, (see Exhibit "I", annexed to
movant's papers at page ll,1ines 17-19), was asked
whether, in 2015, as part of MARINE's operation, there
was ever a time when in maintaining the boats or
performing services that ropes had to be used and his
"I"
response was, yes. See Exhibit annexed to movant's
papers at page 96, lines 9-16.)
35. MR. DIMON further testified that white stretch rope is
commonly used to tie boats up, pull boats up or when
"I"
tying and tugging boats (see Exhibit annexed to
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movant's papers at page 96, lines 17-25 and page 97,
lines 2-4.)
"5"
36. MR. DIMON was shown what had been marked as Exhibit
on June 26, 2019, .elain marked as Exhibit "D", and
asked if the white rope depicted in said exhibit was the
type of rope that would be used by Defendant, MARINE,
and he testified that he could not say with certainty if
that was something he would use personally (see Exhibit
"I"
annexed to movant's papers at page 97, lines 5-16.)
37. Such a question should be left to the trier of facts to
determine. As such, to dismiss the action herein against
the Co-Defendant, at this time, will deprive the
Plaintiff herein of her ability to seek judicial justice
against the movant.
38. Both the Courts and CPLR 3212(f) clearly recognize the
problems associated with premature motions for summary
judgment. It is respectfully submitted there exist facts
essential to effectively oppose the herein Defendant
motion, which are exclusively known to the above
mentioned non-party witness. Therefore, the present
motion should be denied pending the completion of the
abovementioned discovery.
39. In the matter of Yung-Fu Chow v. Boonyam, 240 A.D.2d 737
(2nd Dept. 1997, the Appellate Division, Second
Department held that s m r judgment must be denied,
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citing Logan v. City of New York, 148 A.D.2d 167 (15t
Dept. 1989) and stating, in p rt, that it is simply too
early to grant summary judgment without discovery and
d siti of witnes with knowledge.
40. Dismissing Plaintiff's complaint at this time is drastic
and prer re and ought not be considered ril all
discovery has been completed, in order that the
Plaintiff is not denied her right to pursue an action
against all liable parties.
41. Prematurely dismissing Plaintiff's action against a
Defendant, prior to all discovery having been completed,
is likely to deny the Plaintiff of her ability to pursue
an action against said party before all the available
evidence has been reviewed and considered.
42. In Schleich v. Gruber, 133 A.D.2d 224 (2nd Dept. 1997)
and Blue Bird Coach Lines v. 107 Del. Ave., 125 A.D.2d
(4th Dept. 1986), the Courts held that where there are
pertinent facts essential to justify oppos ion to a
motion for summary judgment which are exclusively within
the knowledge and control of a party, and may be
revealed through pretrial discovery, summary judgment
should be denied. The Second Department has similarly
that, if facts e tial to jc fy opposition to a
motion for summary judgment are unavailable to the
plaintiff and are likely to be exclusively withir he
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knowledge of the defendant, this is a factor which would
render summary judgment relief particularly
inappropriate. See Yung-Fu Chow v. Boonyam, 240 A.D.2d
at 738; see also Logan, 148 A.D.2d 167 (1st Dept. 1989).
43. As is evident in the matter at bar, in the case of
Barletta v. Lewis, 237 A.D.2d 238 (2nd Dept 1997), the
Court held "under the facts and circumstances of this
case, it was premature to grant summary judgment before
discovery had even begun". Moreover, in Hall
Enterprises, Inc. v. Liberty Management & Construction,
LTD., 37 A.D.3d 658 (2nd Dept. 2007), the Court held
that "the request for summary judgment based upon
conclusory affidavits submitted by the movant was
premature."
44. Given the fact that a very pertinent and crucial
deposition has not been held and the indisputable fact
that the herein motion is premature, the Court should
deny the herein motion and allow discovery to proceed
prior to considering granting same. Davey v. Ohler, 188
A.D.2d 726, 727, 590 N.Y.S.2d 584; Khaitov v Minevich,
277 AD2d 805, 807.
45. Based on the above, Defendant's motion should be denied
as premature.
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DEFENDANTS FAILED TO MAKE A PRIMA FACIE SHOWING OF ENTITLL.mtmT TO
S_UMMARY JUDGEMENT AS A MATTER OF LAW
46. A motion for summary judgment for the dismissal of an
on den that : ovant first come forward with
admissible evidence demonstrating prima facie, the
absence of material issues of fact and that, on those
-
s, it is entitled judgment as a matter of law;
Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81
AD3d 223 (2d Dept. 2011).
47. A party moving for same has the burden to present
evidence which demonstrates his or her prima facie
entitlement to judgment as a matter of law, and
accordingly, if the movant does not submit sufficient
evidence on a particular issue or cause of action to
justify judgment as a matter of law, the burden never
shifts to the adversary to submit evidence sufficient to
raise to a triable i of fact. Zecca v. Riccardelli,
293 AD2d 31 (2d Dept. 2002). The courts have held that
the evidence is to be viewed in the light most favorable
to the party opposing summary judgment, Ts v. Golub
Properties, Inc., 103 AD3d 1080 (3d Dept. 2013). The
burden, however, always remains where it began, with the
int on the issue. e, "if evider the
issue is evenly balanced, the party that bears the
loose."
burden must Director, Office of Workers
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FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 SUPPEME COURT OF THE STATE OF NEW YORK CO Y OF SUFFOLK - - - - - - - - - - - - - - - - - - - X Index No: ALICIA M. ARUNDEL; SUZANNE SCHULMAN, as 611214/2015 Administratrix of the Estate of BRITTNEY 6 ·382, _ ,15 M. SCHULMAN, deceased; OLGA LIPETS; 603536/2016 MIE Y GRABINA, as Administratrix of the 67C55 '^016 Estate of AMY GRABINA, and MINDY GRABINA, 003364 .016 Individually; STEVEN BARUCH, as 607598/2016 Administrator of the Estate of LAUREN 0F A31 016 BARUCH, deceased and STEVEN BARUCH, 614685/2016 Individually; JOELLE DIMONTE; and MELISSA A. CRAI, and ARTHUR A. BELLI, JR. as parent and Natural Guardian of STEPHANIE AFFIRMATION IN BELLI, deceased, and as the Administrator OPPOSITION TO MOTION of THE ESTATE OF STEPHANIE BELLI, FOR SUMMARY JUDGMENT Plaintiffs, -against- ULTIMATE CLASS LIMOUSINE, INC., CARLOS Honorable: John Rouse PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD, COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES Motion Return Date: 1-5" name being fictitious but intended 2/19/2020 to be the remanufacturers, distributors, and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. - - - - - - - - - - - - - - - - - - - X Joanne Porcelli, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury: 1. I am an associate with the Law Firm of Frank J. Laine, PC, and attorney of record for the Plaintiff, NDY GP TNA, as Administratrix of the Estate of AMY GRABINA, and MINDY GRABINA, Individually, in the above action, 1 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 and as such am thoroughly conversant with the facts and circumstances herein based upon the contents of the file maintained by this office. 2. I make this Affirmation in Opposition to Defendant, ROMEO DIMON MARINE SERVICE, INC.'s, ("MARINE") motion for an Order; (a) Pursuant to CPLR §3212 granting it Summary Judgement dismissing the complaint of each Plaintiff in this consolidated action insofar as asserted against it. (b) Dismissing any and all cross-claims against it. (b) And for such other and further relief this Court deems just and proper. 3. As will be discussed below, Defendant's motion should be denied in it's entirely as it is premature and there exist serious question of fact which must be flushed out before any party ought to have a claim against it dismissed, to the detriment of the Plaintiffs herein. 4. The movant, MARINE, argues that the case against it ought to be dismissed based on its claim that it was neither the owner of the vehicle driven by Co-Defendant, ROMEO, at the time of the collision, nor was ROMEO acting within the scope of his employment with MARINE. 2 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 RELEVANT FACTS AND PROCEDURAL HISTORY 5. This .nso) iated matter arises out of a motor vehicle collision which occurred on July 18, 2015, on County Road 48 at Depot Lane, in the Town of Southold and involved a limousine which was being driven by co-defendant, CARLOS PINO and was owned by Co-Defendant, ULTI E C S LIMOUSINE, INC., and a second vehicle, which was owned and operated by Co-Defendant STEVEN ROMEO (ROMEO.) Plaintiff decedent, AMY GRABINA, was a passenger in the limousine. 6. In the interest of avoiding repetitiveness, respondent herein directs the Honorable Court's attention to movant's motion papers as same relates to the Relevant Procedural History of this matter. DEFENDANTS' MOTION MUST BE DENIED AS DISCOVERY IS NOT COMPLETE, MAKING THE MOTION PREMATURE 7. It is respectfully submitted that the herein motion is premature and, for the reasons which are discussed below, must be denied. 8. In his deposition of June Co- 25, 2019, endant, ROMEO, testified that he was the co-owner of Defendant, MARINE, (see Exhibit "H", annexed to movant's papers at page 12, line 21 and that on July 18, 2015, Defendant, MARINE, was a marine service business, which repaired boats and engines (see Exhibit , a .é×ee . 's sper at 3 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 page 15, line 15.) 9. Defendant, ROMEO, further tes fied that he was the owner of a red pick up truck at the time of the accident ? movant' at issue Ex t "H", anre . d to s papers at page 21, lines 10-12); that at the time of the accident here at issu was going to Kris Dimon's house (see Exhibit "H", annexed to movant's papers at Kris' page 34, line 7 ); and that he was going to house to attend an engagement party for Kris (see Exhibit "H", annexed to movant's papers at page 35, lines 6-8".) 10. Defendant, ROMEO, testified that on the day here at issue, he worked at Co-Defendant, MARINE, from 8:00 a.m. until 12:00 noon (see Exhibit "H", annexed to movant's papers at page 35, lines 13-23 and page 36, lines 2-17.) 11. Of paramount importance is that Co-Defendant, ROMEO, testified, in part, that he did not have any passengers in his vehicle at the time of the accident (see Exhibit "H", annexed to movant's papers at page 317, lines 6-8".) 12. However, there is clear testimony from non-party witness, Janet Lynn Auer, ("MRS. AUER")who testified on November 13, 2019, that on July 18, 2015 she was present at the herein subject collision, which occurred at the intersection of County Road 48 and Depot Lane, that she arrived right u: the collision ened, that e was 4 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 a lieutenant with the hold Fire Department, that she was acting in the capacity of EMT-B and was also an exterior firefighter (See Exhibit "A", page 7, lines 17-25 and 8, lines 2-10.) 13. MRS. AUER testified that on July 18, 2015 she arrived at the scene of the herein collision (see Exhibit "A", page 11, lines 16-24.) 14. When she arrived at the scene, s e told her that a woman was in the red pickup truck and needed to be looked at. That when she walked over to that woman and asked if she was in the red pickup truck she was told that she was a passenger in the front seat of the red pickup and that she extricated. MRS. AUER also testified that she told the woman she needed to be looked at but was told that she could not be seen at the accident scene so she was taken to the police command unit (see Exhibit "A", page 30, 19-25 and 31, lines 2-19.) 15. During her deposition of November 13, 2019, MRS. AUER testified that she generated a patient care report (PCR), for Michelle g, which was marked as "1" Plaintiff's Exhibit for identification, and is annexed hereto as Exhibit "B". 16. further testified that the report was ed by her at the scene of the collision which occurred on July 18, 2015 (See Exhibit "A", page 27, lines 10-15.) 5 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 17. She clarified that she mpleted that portion of patient care report (PCR) which was described as the physical objective as ent and noted her name the bottom of the report (see Exhibit "A", page 27, lines 20-25) and that Chief Craig Goldsmith also wrote on the form, acting as her s e while she took the patient's vitals (See Exhibit "A", page 28, lines 3-7.) 18. Of paramount importance is MRS. AUER's testimony relating to her notes which appear in the patient care report (PCR), as follows: (see Exhibit "A", page 29, lines 4-18.) Q. If you would, would you please read what you wrote? attention" -- A. "Patient refused all medical Q. I'm patient refused -- sorry, A. "Refused all medical attention. Patient self extricated and stood on the side of the road, non-transport. Patient was in the back of the us" ·d unit with Q. I'm sorry, police? A. Police command unit while being assessed. Patient states she in red pickup truck, front passenger seat, that impacted limo. Patient states no injuries, refusing used." transport. Seat belt 6 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 19. MRS. AUER was asked if there came a time when she learned who this person was and she responded that she learned her name was MICHELLE CA E G (see Exhibit "A",page 29, lines 19-24.) 20. MRS. AUER testified that the information obtained for her report came directly from MICHELLE CANBERG (see Exhibit "A", page 30, lines 12-15.) 21. In fact, she was specifically told by MS. CANBERG that she was in the red pick up truck, front passenger seat (see Exhibit "A", page 35, lines 10-13.) 22. According to MRS. AUER's testimony, another firefighter also told her that MS. CANBERG was in the pick up truck and needed to be assessed for a PCR report (see Exhibit "A", page 70, lines 5-10.) 23. MS. AUER testified that MS. CANBERG did not want to be seen at the scene of the accident but did not say why (see Exhibit "A", page 32, lines 4-6)and that she needed to be assessed in the m and center because she did not want to be seen there (see Exhibit "A", page 73, lines 15-21.) 24. While MS. CANBERG did not give a reason for not wanting e 36 n at the sCene of the accident here at i su s it may have been because she was a customer who was being transported in connection with Co-Defendant's, MARINE, business. 7 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 25. With regard to MRS. AUER's PCR report, she testified as follows: (see Exhibit "A", page 80, lines 11-20.) Q. This PCR report that you prepared, was that peppered in the ordinary course of business of Southold Fire Department? A. Yes. Q. Was it prepared at the time of the accident, at or about the time of the accident? A. Yes. Q. To your knowledge, is the information that you put on this report truthful? A. Yes. 26. There are multiple clear and absolute reasons as to why this Honorable Court ought not consider dismissing the herein action against the movant, MARINE. 27. As noted above, MR. ROMEO testified that he did not have any passengers in his vehicle at the time of the collision here at issue (see Exhibit "H", annexed to movant's papers at page 317, lines 6-8") while MRS. AUER testified (See above) to the existence of an individual who told her that she was a passenger in the red pickup truck at the time of the collision here at issue. 28. The apparent passenger in the red pick up truck, MICHELLE CANBERG, has been subpoenaed to determine if she was a customer being transported in connection with 8 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 Defendant's, MARINE, business, but failed to appear as ordered (See Exhibit "C".) 29. Defendant ROMEO, however, testified that he could not remember if he knew someone by the name of MICHELLE CANBERG (see Exhibit "H", annexed to movant's papers at page 317, lines 9-18".) 30. As noted previously and in light of the abovementioned a passenger, MICHELLE CANBERG, in the red pick-up truck's failure to appear for the subpoena deposition, MR. ROMEO's denial of her existence and MRS. AUER lack of inquiry as to who she was or what she was doing in the red pickup truck at the time of the collision, it is conceivable that she have been a customer of Co- may Defendant, MARINE, who MR. ROMEO was driving somewhere at the time of the collision. If so, MR. ROMEO would have been using the red pick up truck in the course of his employment, making the case against MARINE perfectly viable and not subject to this early requested dismissal. 31. Clearly the deposition of a possible passenger in MR. ROMEO's car is paramount in the matter here at issue and, as such, the case against the movant cannot be dismissed at this time. 32. Furthermore, during his deposition, MR. ROMEO was asked about e.te nttats f .e ack of his truck and he 9 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 testified that there were no boat parts in the back of "H" his truck (See Exhibit of Movant's motion papers, page 340, line 2-4.) 33. However, a closer look at the photo marked as Exhibit "5" dated June 26, 2019, and annexed hereto as "D" Plaintiff's Exhibit shows what appear to be rope which could potentially have been used for purposes of securing boats at the work location of the movant herein, MARINE. This would mean that the MR. ROMEO's vehicle was used for work purposes and the movant's argument that there is no connection between MR. ROMEO's vehicle and the movant entity, MARINE, is incorrect and premature. 34. In fact, during his June 26, 2019 deposition, MR. DIMON, who was the president and co-owner of Romeo Dimon Marine Services on July 18, 2015, (see Exhibit "I", annexed to movant's papers at page ll,1ines 17-19), was asked whether, in 2015, as part of MARINE's operation, there was ever a time when in maintaining the boats or performing services that ropes had to be used and his "I" response was, yes. See Exhibit annexed to movant's papers at page 96, lines 9-16.) 35. MR. DIMON further testified that white stretch rope is commonly used to tie boats up, pull boats up or when "I" tying and tugging boats (see Exhibit annexed to 10 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 movant's papers at page 96, lines 17-25 and page 97, lines 2-4.) "5" 36. MR. DIMON was shown what had been marked as Exhibit on June 26, 2019, .elain marked as Exhibit "D", and asked if the white rope depicted in said exhibit was the type of rope that would be used by Defendant, MARINE, and he testified that he could not say with certainty if that was something he would use personally (see Exhibit "I" annexed to movant's papers at page 97, lines 5-16.) 37. Such a question should be left to the trier of facts to determine. As such, to dismiss the action herein against the Co-Defendant, at this time, will deprive the Plaintiff herein of her ability to seek judicial justice against the movant. 38. Both the Courts and CPLR 3212(f) clearly recognize the problems associated with premature motions for summary judgment. It is respectfully submitted there exist facts essential to effectively oppose the herein Defendant motion, which are exclusively known to the above mentioned non-party witness. Therefore, the present motion should be denied pending the completion of the abovementioned discovery. 39. In the matter of Yung-Fu Chow v. Boonyam, 240 A.D.2d 737 (2nd Dept. 1997, the Appellate Division, Second Department held that s m r judgment must be denied, 11 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 citing Logan v. City of New York, 148 A.D.2d 167 (15t Dept. 1989) and stating, in p rt, that it is simply too early to grant summary judgment without discovery and d siti of witnes with knowledge. 40. Dismissing Plaintiff's complaint at this time is drastic and prer re and ought not be considered ril all discovery has been completed, in order that the Plaintiff is not denied her right to pursue an action against all liable parties. 41. Prematurely dismissing Plaintiff's action against a Defendant, prior to all discovery having been completed, is likely to deny the Plaintiff of her ability to pursue an action against said party before all the available evidence has been reviewed and considered. 42. In Schleich v. Gruber, 133 A.D.2d 224 (2nd Dept. 1997) and Blue Bird Coach Lines v. 107 Del. Ave., 125 A.D.2d (4th Dept. 1986), the Courts held that where there are pertinent facts essential to justify oppos ion to a motion for summary judgment which are exclusively within the knowledge and control of a party, and may be revealed through pretrial discovery, summary judgment should be denied. The Second Department has similarly that, if facts e tial to jc fy opposition to a motion for summary judgment are unavailable to the plaintiff and are likely to be exclusively withir he 12 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 knowledge of the defendant, this is a factor which would render summary judgment relief particularly inappropriate. See Yung-Fu Chow v. Boonyam, 240 A.D.2d at 738; see also Logan, 148 A.D.2d 167 (1st Dept. 1989). 43. As is evident in the matter at bar, in the case of Barletta v. Lewis, 237 A.D.2d 238 (2nd Dept 1997), the Court held "under the facts and circumstances of this case, it was premature to grant summary judgment before discovery had even begun". Moreover, in Hall Enterprises, Inc. v. Liberty Management & Construction, LTD., 37 A.D.3d 658 (2nd Dept. 2007), the Court held that "the request for summary judgment based upon conclusory affidavits submitted by the movant was premature." 44. Given the fact that a very pertinent and crucial deposition has not been held and the indisputable fact that the herein motion is premature, the Court should deny the herein motion and allow discovery to proceed prior to considering granting same. Davey v. Ohler, 188 A.D.2d 726, 727, 590 N.Y.S.2d 584; Khaitov v Minevich, 277 AD2d 805, 807. 45. Based on the above, Defendant's motion should be denied as premature. 13 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615 RECEIVED NYSCEF: 01/23/2020 DEFENDANTS FAILED TO MAKE A PRIMA FACIE SHOWING OF ENTITLL.mtmT TO S_UMMARY JUDGEMENT AS A MATTER OF LAW 46. A motion for summary judgment for the dismissal of an on den that : ovant first come forward with admissible evidence demonstrating prima facie, the absence of material issues of fact and that, on those - s, it is entitled judgment as a matter of law; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., 81 AD3d 223 (2d Dept. 2011). 47. A party moving for same has the burden to present evidence which demonstrates his or her prima facie entitlement to judgment as a matter of law, and accordingly, if the movant does not submit sufficient evidence on a particular issue or cause of action to justify judgment as a matter of law, the burden never shifts to the adversary to submit evidence sufficient to raise to a triable i of fact. Zecca v. Riccardelli, 293 AD2d 31 (2d Dept. 2002). The courts have held that the evidence is to be viewed in the light most favorable to the party opposing summary judgment, Ts v. Golub Properties, Inc., 103 AD3d 1080 (3d Dept. 2013). The burden, however, always remains where it began, with the int on the issue. e, "if evider the issue is evenly balanced, the party that bears the loose." burden must Director, Office of Workers 14 of 19 FILED: SUFFOLK COUNTY CLERK 01/23/2020 08:03 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 615