Preview
FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015
NYSCEF DOC. NO. 638 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 611214/2015
Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015
deceased; OLOA LIPETS; MINDY GRABlNA, 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; 001831/2016
MELISSA A. CRAI; and ARTHUR A. BELLl, as parent and 614685/2016
Natural Guardian of STEPHANIE BELLI, deceased, and as the
Administrator of THE ESTATE OF STEPHANIE BELLI, REPLY AFFIRMATION
(Arundel)
Plaintiffs, Honorable John H. Rouse
- against -
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:
I. I am Of Counsel to the law firrn 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 affinnation in reply to the untimely opposition of plaintiff
ALICIA M. ARUNDEL (hereinafter, referred to as "Arundel") to, and in further support of
Marine's motion for an order pursuant to CPLR §3212 granting it summary judgment dismissint
the complaint of each plaintiff in this consolidated action insofar as asserted against Marine, ant
dismissing any and allcross-claims asserted against it,together with such other and further relie
as to this court deems just and proper.
3. Marine has moved for summary judgment on the grounds that it cannot be helc
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 thc
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. Arundel opposes Marine's motion claiming that it should be denied based on the
arguments made in opposition to the motion by plaintiffs, MINDY GRABINA, as Administratris
of the Estate of AMY GRABINA, and MINDY GRABINA, individually (hereinaher, collectively
referred to as "Grabina"), and by plaintiff, STEVEN BARUCH, as Administrator of the Estate of
LAUREN BARUCH, deceased and Individually (hereinaner, collectively referred to as "Baruch").
whose arguments itadopts and incorporates by reference.
"premature"
5. In opposing the motion. it is claimed that it should 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.
6. Even if this court sees fit to consider Arundel's untimely affirmation in
opposition, which was not served at least seven days in advance of the return date of this motion
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as required pursuant to CPLR §2214(b) as set forth in Marine's notice of motion, but was serve(
the afternoon prior to the return date, it isnonetheless insufficient to raise a triable issue of fac
in opposition to Marine's prima facie showing of its entitlement to summary judgmen
dismissing the complaint of each plaintiff in this consolidated action insofar as asserted agains
Marine, and dismissing any and allcross-claims asserted against it.
7. In opposition to Marine's motion, Grabina claimed that Marine failed tc
evidence,"
demonstrate its prima facie entitlement to summary judgnient "with sufficient anc
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 it
opposition, and to its affirmation in reply to Baruch's opposition. As set forth in Marine's
evidence"
replies, it supported its motion with "sufficient demonstrating its prima facic
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
Arundel 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.
10. 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.
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Canberg), and that the motion should be denied as premature because Ms. Canberg's non-party
deposition is outstanding.
I 1. And while just short of outright claiming that Romeo is a liar and committec
perjury, the plaintiffs whose arguments Arundel adopts and incorporates by reference, alsc
asserts that Marine's motion should be denied because an issue exists regarding Romeo'±
credibility, including whether Ms. Canberg was a passenger in his vehicle, and who knows "wha
about."
else is he being untruthful To this end, they speculate that "the realm of possibility
exists" liability"
that Romeo is "trying to shield Marine from by not being truthful about fact:
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 wht
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 first become 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).
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
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not raise credibility issue, and is insufficient to defeat Marine's motion. Nor does itprove o1
any
raise a triable issue of fact that Ms. Canberg was a passenger in Romeo's vehicle, or that she wa±
being driven by Romeo in furtherance of Marine's business.
14. These assertions are not based on fact, but are speculative, disingenuous, anc
without any merit. As such, they are insufficient to raise a triable issue of fact in opposition tc
Marine's prima fitcieshowing. See Laluso v Maresca, 150 AD3d 712 [2d Dept. 2017]; Fredem
v I'own of Southampton, 95 AD3d 939, 940 [2d Dept. 2012] ("Mere surmise
suspicion. speculation, and conjecture are insufficient to defeat a motion for summary
judgment") (Intemal citations omitted). See also Sherman-Schi[f nan v Costco Wholesale. inc.
63 AD3d 1031 [2d Dept. 2009] (summary judgment motion could not be defeated by feignec
issues).
15. Even assuming, arguendo, that Ms. Canberg was a passenger in the Romec
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 to a function for his
associate,"
business 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 nothing to do with
"H" "I" 34).1
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"), does not
make itotherwise.
All remaining references to exhibitsare tothose annexed to theaffirmation in support of Marinets motion,
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17. Nor is there merit to Grabina's speculative assertion, which Arundel ha:
any
adopted reference, that based photograph appearing to show rope in the back of Romeo'±
by
potentially" purposes."
vehicle, that the rope "could have been "used for [Marine's] work
18. Not did Romeo that he never used his truck for work·
only testify pick-up any
"H"
related things (see Exhibit at p.275, lines 3-13), but so did Dimon during his deposition
"I"
(Exhibit at p.15, lines 7-15).
19. Further, when shown a photograph of the back of Romeo's vehicle at the time o
the accident2. Dimon denied that the white rope depicted therein was a type of rope used or
Marine's premises. After testifying to seeing more than one type of rope in the photograpl
(Exhibit "P 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 yom
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.
21. Likewise, without any merit is the assertion that the court is without ability to
determine if Romeo was acting in the course of his employment at the time of the accident
testimony."
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
"I"
pickup truck was never used for anything having to do with Marine's business (Exhibit at
2 that showed the back of his time of
Romeo had previously testified that photograph vehicle at the the accident.
"H"
(Exhibit atp.339, lines 14-25).
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pp.15-17, 89), and Romeo's use of that vehicle at the time of the accident had nothing to do witl
"I"
Marine's work. (Exhibit at pp.31, 34).
[1"
23. Further, as set forth in Lewis v Rutkovsky, 153 AD3d 450 Dept. 2017] "[t]here
"self-serving,"
is nothing in a legal sense, about deposition testimony that favors the party givint
it. Rather, testimony is said to be self-serving when it contradicts prior testimony-a situatior
here."
that does not exist (Internal citation omitted). Nor does itexist here, either. Romeo dic
not contradict any prior testimony. Rather, he was steadfast in his testimony that he never usec
his pickup truck for Marine business. Moreover, Romeo's testimony is not incredible on itsface
but is supported by Dimon's testimony.
24. 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 overwhelmint
evidence, not speculation, that Romeo was driving his personal vehicle for personal reasons a
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 of
completed"
summary judgment is not premature merely because discovery has not been
(internal 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 exclusive knowledge ano
party."
control of the moving Rogul 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 ar
insufficient basis) (internal citations omitted).
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27. It has been shown that there is no evidentiary basis to support the clairr
already
that Ms. Canberg's non-party deposition might provide relevant information. Despite the
assertion that the other parties should be given an opportunity to depose Ms. Canberg
conclusory
truck,"
as to "what she was in the pickup there is only speculation that she was in Romeo
doing
vehicle. Likewise, there is only speculation that Ms. Canberg might have been a Marin<
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 "exclusivc
control"
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 claim that outstanding discovery
might lead to relevant evidence. See Mogu/, 161 AD3d at 848.
29. Further, it is disingenuous to claim that the timing of Marine's moving fol
summary judgment only serves to prejudice the plaintiffs. Rather, any delay in the motion wil
prejudice Marine in light of the fact that all the facts essential to oppose the motion are known it
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 its
business.
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.
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Conclusion
31. For all the reasons set forth herein and in the affirmation in support of Marine
motion, Marine should be granted summary judgment dismissing the complaints of each plaintif
in this consolidated action, and that all cross-claims against itshould 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:
[ I Service
by a true copy thereof in a post-paid
by depositing wrapper,in an official
depositoryunder the exclusive
care
Mail and official
depositoryundertheexclusivecareandcustodyoftheU.S. Postal
ServicewithintheNew
York State, addressed to each of the following
persons at the
last known aner each name:
address set forth
| IPersr,r.ally by delivering thereof
a true copy to each person named below
personally I knew
at the address indicated.
Served on each person served to be the person men
ned and described in said papers as a party
therein:
Individual
|X ] Service
by by the
transmitting papersby electronic
means throughthe New York StateUnified Court System's
Electronic electronic systern.
filing 1 an
received e-mailfromtheNew York State
Elcetronic System
Filing indicating
Mean that the transmission
was received and delivered
to all counsel in this action:
I ] Overnight by a true copy
depositing enclosed
thereof. in a wrapperaddressed as shown
below, intothe custody
of
UNITED PARCEL SERVICE for ovemight prior
delivery, to the latest time designated
by that service
for
ovemightdelivery.
Upon:
THE BIONGIORNO LAW FIRM, PLLC BLOCK O'TOOLE & MURPHY LLP
Attorneys for Plaintsf Alicia M Arundel Attorneys for Plaintif Arthur A. Belli, Jr., as
1415 Kellum Place, Suite 205 Parent and Natural Guardian of Stephanie
Garden City, New York 11530 Belli,deceased, and Administrator of the
(516) 741-4170 Estate of Stephanie Belli
Penn Plaza, Suite 5315
JOHN L. JULIANO, P.C. New York, New York 10119
Attorneys for Plaintiff
Suzanne Schulman, as Administratrix of the BONGIORNO, MONTIGLIO & PALMlER
Estate of Brittany M Schulman, deceased Attorneys for De fendants, CARLOS F. PINO
39 Doyle Court and ULTIMATE CLASS LIMOUSINE, INC.
East Northport, New York I1731 200 Old Country Road. Suite 680
(631) 499-9300 Mineola, New York 11501
(516) 620-4490
PARIS & CHAIKEN PLLC
Attorneys for 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 1 l749
LAW OFFICES OF JOSEPH J. TOCK (631) 755-0101
Attorney for Plainuf Melissa A. Crai
963 Route 6 LAW OFFICES OF THOMAS M. VOLZ, PLI
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 Plaindff Mindy Grabina, asAdmii±iitratrix Attorneys for Defendant,
of the Estate ofAmy Grabina, andMindy Grabina, County ofSuffolk
Individually Tower Square
449 S. Oyster Bay Rd. 1045 Oyster Bay Road, Suite 1
Plainview, New York 11803 East Norwich, New York 1 1732
(5 I6)937-1010 (516) 922-9100
SULLIVAN, PAPAIN, BLOCK, MCGRATH, LAW OFFICES OF ANDREA G. SAYWYERS
CANNAVO, P.C. Attorneys for Defendant,
Attorney for Plaintiff Steven Baruch as Administrator of Cabot Coach Builders, Inc.
the Estate of Lauren Baruch, deceased, and Steven d/b/a Royale Limousine
Baruch, Individually P.O. Box 9028
1140 Franklin Avenue, Suite 200 Melville, New York 11747
Garden City, New York 11530 (631) 501-3077
(516) 742-0707
PEGALIS & ERICKSON, LLC (Notice Only)
Attorney for Plaintif Joelle Dimonte
1 Hollow Lane, Suite 107
New Hyde Park, New York 11042
(516) 684-2900
MAR COOKE
Sworn to before me this
19th day of February, 2020
No Public
CYNTHIA L. LOVELACE
Pubt State of New York
Notary
No. 0. LO6^?6E?
Qualitied in Nassau County
Commission Expires August 16, 20-
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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
COUNTY OF SUFFOLK
ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as
Administratrix of the ESTATE OF BRITTANY SCHULMAN, deceased;
OLGA LIPETS; MINDY GRABINA, as Administrat-ix 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.
CRAI, and ARTHUR A. BELLI, as parent and Natural Guardian of
STEPHANIE BELLI, deceased, and as the Administrator of THE ESTATE
OF STEPHANIE BELLI,
Plaintiffs,
against -
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO,
ROMEO D1MON 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 intended to be the re=amActürers, distributors and/or sellersof 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, Telephone
1399 Franklin Avenue, Suite 302
Garden City, New York 11530
(516) 747-1990
(516) 747-1992 Facsimile
To: ALL COUNSEL
Service of a copyof thewithin
is hereby admitted,
Dated, 2/19/2020
Attorney(s) forDêfeñds::t- ROMEO DIMON MARINE SERVICE, INC.
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FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 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 611214/2015 Administratrix of the ESTATE OF BRITTANY SCHULMAN, 609082/2015 deceased; OLOA LIPETS; MINDY GRABlNA, 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; 001831/2016 MELISSA A. CRAI; and ARTHUR A. BELLl, as parent and 614685/2016 Natural Guardian of STEPHANIE BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI, REPLY AFFIRMATION (Arundel) Plaintiffs, Honorable John H. Rouse - against - 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: I. I am Of Counsel to the law firrn 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 1 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 2. I am submitting this affinnation in reply to the untimely opposition of plaintiff ALICIA M. ARUNDEL (hereinafter, referred to as "Arundel") to, and in further support of Marine's motion for an order pursuant to CPLR §3212 granting it summary judgment dismissint the complaint of each plaintiff in this consolidated action insofar as asserted against Marine, ant dismissing any and allcross-claims asserted against it,together with such other and further relie as to this court deems just and proper. 3. Marine has moved for summary judgment on the grounds that it cannot be helc 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 thc 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. Arundel opposes Marine's motion claiming that it should be denied based on the arguments made in opposition to the motion by plaintiffs, MINDY GRABINA, as Administratris of the Estate of AMY GRABINA, and MINDY GRABINA, individually (hereinaher, collectively referred to as "Grabina"), and by plaintiff, STEVEN BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased and Individually (hereinaner, collectively referred to as "Baruch"). whose arguments itadopts and incorporates by reference. "premature" 5. In opposing the motion. it is claimed that it should 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. 6. Even if this court sees fit to consider Arundel's untimely affirmation in opposition, which was not served at least seven days in advance of the return date of this motion 2 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 as required pursuant to CPLR §2214(b) as set forth in Marine's notice of motion, but was serve( the afternoon prior to the return date, it isnonetheless insufficient to raise a triable issue of fac in opposition to Marine's prima facie showing of its entitlement to summary judgmen dismissing the complaint of each plaintiff in this consolidated action insofar as asserted agains Marine, and dismissing any and allcross-claims asserted against it. 7. In opposition to Marine's motion, Grabina claimed that Marine failed tc evidence," demonstrate its prima facie entitlement to summary judgnient "with sufficient anc 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 it opposition, and to its affirmation in reply to Baruch's opposition. As set forth in Marine's evidence" replies, it supported its motion with "sufficient demonstrating its prima facic 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 Arundel 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. 10. 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. 3 3 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 Canberg), and that the motion should be denied as premature because Ms. Canberg's non-party deposition is outstanding. I 1. And while just short of outright claiming that Romeo is a liar and committec perjury, the plaintiffs whose arguments Arundel adopts and incorporates by reference, alsc asserts that Marine's motion should be denied because an issue exists regarding Romeo'± credibility, including whether Ms. Canberg was a passenger in his vehicle, and who knows "wha about." else is he being untruthful To this end, they speculate that "the realm of possibility exists" liability" that Romeo is "trying to shield Marine from by not being truthful about fact: 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 wht 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 first become 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). 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 4 4 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 not raise credibility issue, and is insufficient to defeat Marine's motion. Nor does itprove o1 any raise a triable issue of fact that Ms. Canberg was a passenger in Romeo's vehicle, or that she wa± being driven by Romeo in furtherance of Marine's business. 14. These assertions are not based on fact, but are speculative, disingenuous, anc without any merit. As such, they are insufficient to raise a triable issue of fact in opposition tc Marine's prima fitcieshowing. See Laluso v Maresca, 150 AD3d 712 [2d Dept. 2017]; Fredem v I'own of Southampton, 95 AD3d 939, 940 [2d Dept. 2012] ("Mere surmise suspicion. speculation, and conjecture are insufficient to defeat a motion for summary judgment") (Intemal citations omitted). See also Sherman-Schi[f nan v Costco Wholesale. inc. 63 AD3d 1031 [2d Dept. 2009] (summary judgment motion could not be defeated by feignec issues). 15. Even assuming, arguendo, that Ms. Canberg was a passenger in the Romec 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 to a function for his associate," business 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 nothing to do with "H" "I" 34).1 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"), does not make itotherwise. All remaining references to exhibitsare tothose annexed to theaffirmation in support of Marinets motion, 5 5 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 17. Nor is there merit to Grabina's speculative assertion, which Arundel ha: any adopted reference, that based photograph appearing to show rope in the back of Romeo'± by potentially" purposes." vehicle, that the rope "could have been "used for [Marine's] work 18. Not did Romeo that he never used his truck for work· only testify pick-up any "H" related things (see Exhibit at p.275, lines 3-13), but so did Dimon during his deposition "I" (Exhibit at p.15, lines 7-15). 19. Further, when shown a photograph of the back of Romeo's vehicle at the time o the accident2. Dimon denied that the white rope depicted therein was a type of rope used or Marine's premises. After testifying to seeing more than one type of rope in the photograpl (Exhibit "P 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 yom 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. 21. Likewise, without any merit is the assertion that the court is without ability to determine if Romeo was acting in the course of his employment at the time of the accident testimony." 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 "I" pickup truck was never used for anything having to do with Marine's business (Exhibit at 2 that showed the back of his time of Romeo had previously testified that photograph vehicle at the the accident. "H" (Exhibit atp.339, lines 14-25). 6 6 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 pp.15-17, 89), and Romeo's use of that vehicle at the time of the accident had nothing to do witl "I" Marine's work. (Exhibit at pp.31, 34). [1" 23. Further, as set forth in Lewis v Rutkovsky, 153 AD3d 450 Dept. 2017] "[t]here "self-serving," is nothing in a legal sense, about deposition testimony that favors the party givint it. Rather, testimony is said to be self-serving when it contradicts prior testimony-a situatior here." that does not exist (Internal citation omitted). Nor does itexist here, either. Romeo dic not contradict any prior testimony. Rather, he was steadfast in his testimony that he never usec his pickup truck for Marine business. Moreover, Romeo's testimony is not incredible on itsface but is supported by Dimon's testimony. 24. 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 overwhelmint evidence, not speculation, that Romeo was driving his personal vehicle for personal reasons a 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 of completed" summary judgment is not premature merely because discovery has not been (internal 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 exclusive knowledge ano party." control of the moving Rogul 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 ar insufficient basis) (internal citations omitted). 7 7 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 27. It has been shown that there is no evidentiary basis to support the clairr already that Ms. Canberg's non-party deposition might provide relevant information. Despite the assertion that the other parties should be given an opportunity to depose Ms. Canberg conclusory truck," as to "what she was in the pickup there is only speculation that she was in Romeo doing vehicle. Likewise, there is only speculation that Ms. Canberg might have been a Marin< 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 "exclusivc control" 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 claim that outstanding discovery might lead to relevant evidence. See Mogu/, 161 AD3d at 848. 29. Further, it is disingenuous to claim that the timing of Marine's moving fol summary judgment only serves to prejudice the plaintiffs. Rather, any delay in the motion wil prejudice Marine in light of the fact that all the facts essential to oppose the motion are known it 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 its business. 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. 8 8 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 Conclusion 31. For all the reasons set forth herein and in the affirmation in support of Marine motion, Marine should be granted summary judgment dismissing the complaints of each plaintif in this consolidated action, and that all cross-claims against itshould also be dismissed. Dated: Garden City, New York February 19, 2020 David F. Tavella 9 9 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 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: [ I Service by a true copy thereof in a post-paid by depositing wrapper,in an official depositoryunder the exclusive care Mail and official depositoryundertheexclusivecareandcustodyoftheU.S. Postal ServicewithintheNew York State, addressed to each of the following persons at the last known aner each name: address set forth | IPersr,r.ally by delivering thereof a true copy to each person named below personally I knew at the address indicated. Served on each person served to be the person men ned and described in said papers as a party therein: Individual |X ] Service by by the transmitting papersby electronic means throughthe New York StateUnified Court System's Electronic electronic systern. filing 1 an received e-mailfromtheNew York State Elcetronic System Filing indicating Mean that the transmission was received and delivered to all counsel in this action: I ] Overnight by a true copy depositing enclosed thereof. in a wrapperaddressed as shown below, intothe custody of UNITED PARCEL SERVICE for ovemight prior delivery, to the latest time designated by that service for ovemightdelivery. Upon: THE BIONGIORNO LAW FIRM, PLLC BLOCK O'TOOLE & MURPHY LLP Attorneys for Plaintsf Alicia M Arundel Attorneys for Plaintif Arthur A. Belli, Jr., as 1415 Kellum Place, Suite 205 Parent and Natural Guardian of Stephanie Garden City, New York 11530 Belli,deceased, and Administrator of the (516) 741-4170 Estate of Stephanie Belli Penn Plaza, Suite 5315 JOHN L. JULIANO, P.C. New York, New York 10119 Attorneys for Plaintiff Suzanne Schulman, as Administratrix of the BONGIORNO, MONTIGLIO & PALMlER Estate of Brittany M Schulman, deceased Attorneys for De fendants, CARLOS F. PINO 39 Doyle Court and ULTIMATE CLASS LIMOUSINE, INC. East Northport, New York I1731 200 Old Country Road. Suite 680 (631) 499-9300 Mineola, New York 11501 (516) 620-4490 PARIS & CHAIKEN PLLC Attorneys for 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 1 l749 LAW OFFICES OF JOSEPH J. TOCK (631) 755-0101 Attorney for Plainuf Melissa A. Crai 963 Route 6 LAW OFFICES OF THOMAS M. VOLZ, PLI 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 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 RECEIVED NYSCEF: 02/19/2020 FRANK J. LAINE, P.C. Law Office of Vincent D. McNamara Attorney for Plaindff Mindy Grabina, asAdmii±iitratrix Attorneys for Defendant, of the Estate ofAmy Grabina, andMindy Grabina, County ofSuffolk Individually Tower Square 449 S. Oyster Bay Rd. 1045 Oyster Bay Road, Suite 1 Plainview, New York 11803 East Norwich, New York 1 1732 (5 I6)937-1010 (516) 922-9100 SULLIVAN, PAPAIN, BLOCK, MCGRATH, LAW OFFICES OF ANDREA G. SAYWYERS CANNAVO, P.C. Attorneys for Defendant, Attorney for Plaintiff Steven Baruch as Administrator of Cabot Coach Builders, Inc. the Estate of Lauren Baruch, deceased, and Steven d/b/a Royale Limousine Baruch, Individually P.O. Box 9028 1140 Franklin Avenue, Suite 200 Melville, New York 11747 Garden City, New York 11530 (631) 501-3077 (516) 742-0707 PEGALIS & ERICKSON, LLC (Notice Only) Attorney for Plaintif Joelle Dimonte 1 Hollow Lane, Suite 107 New Hyde Park, New York 11042 (516) 684-2900 MAR COOKE Sworn to before me this 19th day of February, 2020 No Public CYNTHIA L. LOVELACE Pubt State of New York Notary No. 0. LO6^?6E? Qualitied in Nassau County Commission Expires August 16, 20- 11 of 12 FILED: SUFFOLK COUNTY CLERK 02/19/2020 11:31 AM INDEX NO. 611214/2015 NYSCEF DOC. NO. 638 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 COUNTY OF SUFFOLK ALICIA M. ARUNDEL, SUZANNE SCHULMAN, as Administratrix of the ESTATE OF BRITTANY SCHULMAN, deceased; OLGA LIPETS; MINDY GRABINA, as Administrat-ix 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. CRAI, and ARTHUR A. BELLI, as parent and Natural Guardian of STEPHANIE BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI, Plaintiffs, against - ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO D1MON 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 intended to be the re=amActürers, distributors and/or sellersof 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, Telephone 1399 Franklin Avenue, Suite 302 Garden City, New York 11530 (516) 747-1990 (516) 747-1992 Facsimile To: ALL COUNSEL Service of a copyof thewithin is hereby admitted, Dated, 2/19/2020 Attorney(s) forDêfeñds::t- ROMEO DIMON MARINE SERVICE, INC. 12 of 12