Preview
FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020
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 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. CRAl; and ARTHUR A. BELLI JR, as parent and 614685/2016
Natural Guardian of STEPHANIE BELLI, deceased, and as the
Administrator of THE ESTATE OF STEPHANIE BELLl, REPLY
AFFIRMATION
(To Belli)
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.
PAMELA WOLFF COHEN, an attorney duly admitted to practice law before the
Courts of the State of New York, affirms the following to be true under penalties of perjury:
1. I am associated with the law firm of CASCONE & KLUEPFEL, LLP,
attorneys for defendant, ROMEO DIMON MARINE SERVICE, INC. (hereinatter
referred to as "Marine") in the above-entitled matter, and as such, I am fully familiar with
the facts and circumstances surrounding this matter. The source of my knowledge is the file
maintained by this office during the course of itsdefense of this matter.
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2. I am submitting this affirmation in reply to the untimely opposition of
plaintiff, ARTHUR A. BELLI JR, as parent and Natural Guardian of STEPHANIE
BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI
(hereinafter, collectively referred to as "Belli") to, and in further support of, Marine's
motion for an order pursuant to CPLR §3212 granting itsummary judgment dismissing the
complaint of each plaintiff in thisconsolidated action insofar as asserted against Marine, and
dismissing any and all cross-claims asserted against it,together with such other and further
relief as to this court deems just and proper.
3. Marine has moved for summary judgmem on the grounds that itcannot be
held liable as it was neither the owner nor operator of the vehicle, a red pick-up truck,
being driven by co-defendant, STEVEN ROMEO (hereinafter, referred to as "Romeo")
that was involved in the accident, or was Romeo acting within the scope of his
employment with Marine at the time of the accident. Accordingly, any negligence on
Romeo's part cannot be imputed to Marine.
4. Belli opposes Marine's motion claiming that it should be denied based on
the arguments made in opposition to the motion by plaintiffs, MfNDY GRABlNA, as
Administratrix of the Estate of AMY ORABINA, and MINDY GRABINA, individually
(hereinafter, collectively referred to as "Grabina"), and by plaintiff. STEVEN BARUCH, as
Administrator of the Estate of LAUREN BARUCH, deceased and Individually
(hereinafter, collectively referred to as "Baruch"), whose arguments it adopts and
incorporates by reference.
"premature"
5. In opposing the motion, itis claimed that itshould be denied as
"essential"
because discovery, namely a non-party deposition, reindiüs outstanding, and
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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 Belli's untimely affirmation in
opposition, which was not served at least seven days in advance of the return date of this
motion as required pursuant to CPLR §2214(b) as set forth in Marine's notice of motion,
but was served the afternoon prior to the return date, it isnonetheless insufficient to raise
a triable issue of fact in opposition to Marine's prima facie showing of its entitlement to
summary judgment dismissing the complaint of each plaintiff in this consolidated action
insofar as asserted against Marine, and dismissing any and all cross-claims asserted against
it.
7. In opposition to Marine's motion, Grabina claimed that Marine failed to
evidence,"
demonstrate its prima facie entitlement to summary judgment "with sufficient
and that the motion was premature because the deposition of non-party witness, Michelle
Canberg ("Ms. Canberg") is outstanding.
8. The court is respectfully referred to Marine's reply to Grabina's
affirmation in opposition, and to itsaffirmation in reply to Baruch's opposition. As set
evidence"
forth in Marine's replies, itsupported itsmotion with "sufficient demonstrating
its prima facie entitlement to summary judgment, and in opposition, no question of fact
has been raised by any party.
9. Marine's evidence established not only that Romeo was the owner of the
vehicle he was operating at the time of the accident (facts neither refuted, let alone,
addressed by Belli or any party who has opposed the motion), but also that Romeo was
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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,itis 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.
11. And while just short of outright claiming that Romeo is a liar and
committed perjury, the plaintiffs whose arguments Belli adopts and incorporates by
reference, also asserts that Marine's motion should be denied because an issue exists
regarding Romeo's credibility, including whether Ms. Canberg was a passenger in his
about."
vehicle, and who knows "what else is he being untruthful To this end, they
exists"
speculate that "the realm of possibility that Romeo is "trying to shield Marine
liability"
from by not being truthful about facts surrounding the accident.
12. Such assertions are without any merit, and are speculative and
disingenuous. They are based on deposition testimony of a non-party witness (Ms.
Auer), an EMT who responded to the scene after the accident, and claims that Ms.
Cranberg was a passenger in the Romeo vehicle. However, Ms. Auer does not have any
first-hand knowledge that Ms. Canberg was a passenger in the Romeo vehicle at the time
of the accident.
"Q. How did you firstbecome aware of Michelle Canberg, that
she was injured and claiming to have been in the pickup
truck at the time of the collision?
A. I did not say she was injured, she was standing there,
someone else came up to me and told me that she was a
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passenger in that pickup truck. and that she needed to be
evaluated, so 1 went over to her.
Q. Who was that person that told you that she was in the
pickup truck'?
that."
A. 1, to thisday. 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 an behalf of Grabina
in opposition to the motion).
13. Moreover, testimony placing Ms. Canberg at the scene is not the same as
if'
proving that Romeo knew Ms. Canberg. and even he did, that he knew she was at the
scene. lt does not raise any credibility issue, and is insufficient to defeat Marine's
motion. Nor does it prove or raise a triable issue of fact that Ms. Canberg was a
passenger in Romeo's vehicle, or that she was being driven by Romeo in furtherance of
Marine's business.
14. These assertions are not based on fact, but are speculative, disingenuous,
and without any merit. As such, they are insufHcient to raise a triable issue of fact in
opposition to Marine's prima facie showing. See La(uso v Afaresccv, 150 AD3d 712 I2d
Dept. 2017]; Fredelte v 7'own of Southa~npIon, 95 AD3d 939, 940 [2d Dept. 2012]
("
Mere surmise, suspicion. speculation, and conjecture are insufHcient to defeat a motion
judgment"
for summary ) (Internal citations omitted). See also She>xnan-Schifpran v
Costco 8'holesole, Inc., 63 AD3d 1031 I2d Dept. 2009] (summary judgment motion
cauld not be defeated by feigned issues).
15. Even assuming, arguendo, that Ms. Canberg was a passenger in the
Romeo vehicle, there is not a scintilla of evidence that: 1) she was a Marine customer, or
2) Romeo was driving her in furtherance of Marine's business.
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16. The desperate attempt to raise a question of fact in this regard by
characterizing Romeo's use of his vehicle at the time of the accident as being "on his way
associate,"
to a function for his business likewise fails. It is uncontroverted that at the
time of the accident, Romeo was on his way to an engagement party-a purely personal
"H"
motive having nothing to do with Marine's work. (See Exhibit at pp.34-35; Exhibit
"I" 34).I
pp.31, Simply because the engagement party was for his then business partner,
Kristopher Dimon ("Dimon"), does not make itotherwise,
17. Nor is there any merit to Grabina's speculative assertion, which Belli has
adopted by reference, that based photograph appearing to show rope in the back of
potentially"
Romeo's vehicle, that the rope "could have been "used for [Marine's] work
purposes."
18. Not only did Romeo testify that he never used his pick-up truck for any
"H"
work-related things (see Exhibit at p.275, lines 3-13), but so did Dimon during his
"I"
deposition. (Exhibit at p.15, lines 7-.15).
19. Further, when shown a photograph of the back of Romeo's vehicle at the
time of the accident2, Dimon denied that the white rope depicted therein was a type of
rope used on Marine's;premises. After testifying to seeing more than one type of rope in
"I"
the photograph (Exhibit at p.97, lines 20-24), he went on to testify as follows:
"Qs I'm talking about the white one, have you ever seen that before on
your premises?
no." "I"
A. Not to my knowledge, (Exhibit at pp.97-98).
All remaining references to exhibits are to those annexed to the affirmation in support of Marine's
motion.
2 testifiedthat that the back his vehicle at the of
Romeo had previously photograph showed of time the
"H"
.accident.(Exhibit at p.339,lines 14-25),
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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.
2L 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
testimony."
the accident because "all that was submitted is self-serving deposition This
simply is not true.
22. Wholly overlooked and omitted is Dimon's deposition testimony which
was submitted in support of Marine's motion. (See Exhibit "I"). As testified to by
Dimon, Romeo's pickup truck was never used for anything having to do with Marine's
"I"
business (Exhibit at pp.15-17, 89), and Romeo's use of that vehicle at the time of the
"T"
accident had nothing to do with Marine's work. (Exhibit at pp.31, 34).
[1"
23. Further, as set forth in Lewis v Rutkovsky, 153 AD3d 450 Dept. 2017]
"self-serving,"
"[t]here is nothing in a legal sense, about deposition testimony that favors
the party giving it. Rather, testimony is said to be self-serving when it contradicts prior
here."
testimony-a situation that does not exist (Internal citation omitted). Nor does it
exist here, either. Romeo did not contradict any prior testimony. Rather, he was
steadfast in his testimony that he never used his pickup truck for Marine business.
M.oreover, Romeo's testimony is not incredible on its face, but is supported by Dimon's
testimony.
24. Nor is there any evidentiary basis to support a claim that Ms. Canberg's
non-party deposition might provide relevant information, especially in the face of
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overwhehning evidence, not speculation, that Romeo was driving his personal vehicle tor
personal reasons at the tiine of the accident and not i' furtherance of Marine's business.
25. That discovery may be outstanding does not require denial of a summary
judgment motion. See h>fogril v BapIisle, 161 AD3d 847, S48 [2d Dept. 2018] ("A grant
of suriim~y judgment is not premature merely because discovery has not been
completed"
) (internal citations omitted); lamore v Panapoiclos, 121 AD3d 863 t2d Dept.
2014].
26. For a summary judgment motion to be denied as premature, the opposing
party must "provide an evidentiary basis to suggest that discovery might lead to relevant
evidence or that the facts essential to justify opposition to the motion were in the
party."
exclusive knowledge and control of the moving Mogul at S48 (internal citations
('
omitted). See ufo lowoje, 121 AD3d at 864 mere hope that evidence sufficient to
uncovered"
defeat the motion might be is an insufficient basis) (internal citations
omitted).
27. It has already been shown that there is no evidentiary basis to support the
claim that Ms. Canberg's non-party deposition might provide relevant information.
Despite the conclusory assertion that the other parties should be given an opportunity to
truck,'*
depose Ms. Canberg as to 'what she was doing in the pickup there is only
speculation that she was in Romeo's vehicle. Likewise, there is only speculation that Ms.
Canberg might have been a Marine customer being driven by Romeo in connection with
Marine's business at the time of the accident. Such assertions are insufficient to defeat
Marine's motion.
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28. Nor has it been shown that the movant, in this case, Marine, has
control"
"exclusive knowledge and of facts essential to oppose the motion, which
showing is required to be made when seeking to deny a motion for summary judgment on
the basis that it is premature, when like here, there is no evidentiary basis to support the
claim that outstanding discovery might lead to relevant evidence. See Mogu/, 161 AD3d
at 848.
29. Further, itis disingenuous to claim that the timing of Marine's moving for
summary judgment only serves to prejudice the plaintiffs. Rather, any delay in the motion
will prejudice Marine in light of the fact that all the facts essential to oppose the motion
are known to the parties, which evidence demonstrates that Marine was neither the owner
of operator of vehicle being driven by Romeo, nor that the vehicle was being driven in
furtherance of itsbusiness.
30. Accordingly, there is no basis to deny Marine's motion as premature, or
on the basis that a question of fact exists as to whether Romeo was acting in the course of
his employment at the time of the accident, or as to his credibility.
Conclusion
31. For all the reasons set forth herein and in the affirmation in support of
Marine's motion, Marine should be granted summary judgment dismissing the
complaints of each plaintiff in this consolidated action, and that all cross-claims against it
should also be dismissed.
Dated: Garden City, New York
February 18, 2020
Pamela Wolff Cohen
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF NASSAU )ss.:
1, 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 18, 2020 [ served the within REPLY AFFIRMATION:
| ] Service
by a true copy then:of
by depositing in a post-paid wrapper, in an official
depositoryunder the exclusive
care and officinf
depositoryunder the
Mail exclusive
care and custody of the U.S. Postal Service
withinthe New YorkState. addressed to each orthe persons at the
following (ast known
address set forth after ench name:
[ ]Personal a true copy thereof personally
by delivering lo cach person named below
at the address indicated.
1knew cach person served to be the person
Served on paro•therein:
mentiom-d and described in said papers as a
individual
[X | Service
by the papers by electronic
by transmitting means throughthe NewYork State Unified
CourtSystem's clectronic systern.
filing an e-
I received
Electmnic mailfmm the New YorkState Electronic Systerrt indicating
Filing that the transmission
was received and delivered
to all counsel in this action:
Mean
[ ] Overnight a true
by depositing copy enclosed
thereof, in a wrapper
addressed as shownbelow,intothe custody
of UNITED PARCEL SERVICE for
ovemight prior
delivery, to the latest.time designated by that service for overnight
delivery.
Upon:
THE BIONGIORNO LAW F1RM ,PLLC BLOCK O'TOOLE & MURPHY LLP
Anorneys for Plaintif Alicia M. Arundel Attorneys for Plaintif
1415 Kellum Place, Suite 205 Arthur A. Belli,Jr., as Parent and Natural Guardian of
Garden City, New York 11530 Stephanie Belli, deceased and Adminisn ator of the Estate
(516) 741-4170 of Stephanie Belli
1 Penn Plaza, Suite 5315
JOHN L. JULIANO, P.C. New York, New York 10119
Attorneys for Plaintif
Suzanne Schulman, as Administratrix of the BONGIORNO, MONTIGLIO & PALMIER
Estate ofBrittany M. Schulman, deceased Attorneys for Defendants,
39 Doyle Court CARLOS F. PINO and
East Northport, New York 11731 ULTIMATE CLASS LIMOUSINE, 1NC.
(631) 499-9300 200 Old Country Road, Suite 680
Mineola, New York 11501
PARIS & CHAIKEN PLLC (516) 620-4490
Auorneys for Plaintif Olga Lipets
14 Penn Plaza, Suite 2000 LEWIS JOHS AVALLONE VlLES, LLP
New York, NY 10122 Attorneys for Defendant,
(212). 742-0476 STEVEN D. ROMEO
One CA Plaza, Suite 225
LAW OFFICES OF JQSEPH J.TOCK Islandia, New York 11749
Auorney for Plaintif Melissa A. Crai (631)755-0101
963 Route 6.
Mahopac, New York 10541 LAW OFFICES OF THOMAS M. VOLZ, PLLC
(845) 628-8080 Auorneys for Defendant,
TOWN OF SOUTHOLD
280 Smithtown Boulevard
Nesconset, New York 1 1767
(631)366-2700
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FRANK 1 LAINE, P.C. Law Office of Vincent D. McNantara
Attorney for Plainnf Mindy Grabina, as Adminis!tatrix of the Attorneys for Defendant,
Estate ofAmy Grabina, and Mindy Grabina, Individually County of$uffolk
449 S. Oyster Bay Rd. Tower Square
Plainview, New York I1803 1045 Oyster Bay Road, Suite 1
(516) 937-10I0 East Norwich, New York 1 1732
(516) 922-9100
SULLIVAN, PAPAIN, BL.OCK, MCGRATH, CANNAVO, P.C.
Attorney for Plaintif Steven Baruch as Administrator of LAW OF FICES OF ANDREA G. SAYWYERS
the Estate of Lauren Baruch, deceased, and Steven Baruch, Attorneys for Defendant,
brdividually Cabot Coach Builders, fne,
I140 Franklin Avenue, Suite 200 d/bla Royale Limousine
Garden City, New York 11530 P.O. Box 9028
(5l 6) 742-0707 Melville, New York 11747
(631) 501-3077
PEGALIS & ERICKSON, LLC (Notice Only)
Attorneyfor Plainaf Joelle Dimonte
1 Hollow Lane, Suite 107
New Hyde Park, New York 1 I042
(516) 684-2900
MARY CQÇfKE
Sworn to before me this
18th day of February, 2020
tary Public
L LOV C
cyNTHIA
Notary Public1LO 6783
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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 Administratrix of the Estate of
AMY GRABINA, and MINDY GRABINA, Individually; STEVEN
BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased
and STEVEN BARUCH, Individually; JOELLE DIMONTE; and MELISS A.
CRAl, and ARTHUR A. BELL1, as parent and Natural Guardian of
STEPHANIE BELL1, deceased, and as the Administrator of THE ESTATE
OF STEPHAN1E BELLl,
Plaintiffs,
against -
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO,
ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN
OF SOUTHOLD and COUNTY OF SUFFOLK, CABOT COACH BUILDERS,
1-5"
INC. d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES name being
fictitiousbut intended to be the remanufacturers, distributors and/or sellers of the
2007 Lincoln Town Car stretch limousine involved in the collision,
Defendants.
REPLY AFFIRMATION
CASCONE & KLUEPFEL, LLP.
Attorneys for Defendant -
ROMEO DIMON MARINE SERVICE
Office and Post Office Address, Telephone
1399 Franklin Avenue, Suite 302
Garden City, New York 11530
(516) 747-1990
(516) 747-1992 Facsimile
To: ALL COUNSEL
Service of a copyofÏhe within
is herebyadmitted,
Dated,2/18/2020
forDefeadast- ROMEO DIMON MARINE SERVICE, INC.
Attorney(s)
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FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 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 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. CRAl; and ARTHUR A. BELLI JR, as parent and 614685/2016 Natural Guardian of STEPHANIE BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLl, REPLY AFFIRMATION (To Belli) 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. PAMELA WOLFF COHEN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following to be true under penalties of perjury: 1. I am associated with the law firm of CASCONE & KLUEPFEL, LLP, attorneys for defendant, ROMEO DIMON MARINE SERVICE, INC. (hereinatter referred to as "Marine") in the above-entitled matter, and as such, I am fully familiar with the facts and circumstances surrounding this matter. The source of my knowledge is the file maintained by this office during the course of itsdefense of this matter. 1 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 2. I am submitting this affirmation in reply to the untimely opposition of plaintiff, ARTHUR A. BELLI JR, as parent and Natural Guardian of STEPHANIE BELLI, deceased, and as the Administrator of THE ESTATE OF STEPHANIE BELLI (hereinafter, collectively referred to as "Belli") to, and in further support of, Marine's motion for an order pursuant to CPLR §3212 granting itsummary judgment dismissing the complaint of each plaintiff in thisconsolidated action insofar as asserted against Marine, and dismissing any and all cross-claims asserted against it,together with such other and further relief as to this court deems just and proper. 3. Marine has moved for summary judgmem on the grounds that itcannot be held liable as it was neither the owner nor operator of the vehicle, a red pick-up truck, being driven by co-defendant, STEVEN ROMEO (hereinafter, referred to as "Romeo") that was involved in the accident, or was Romeo acting within the scope of his employment with Marine at the time of the accident. Accordingly, any negligence on Romeo's part cannot be imputed to Marine. 4. Belli opposes Marine's motion claiming that it should be denied based on the arguments made in opposition to the motion by plaintiffs, MfNDY GRABlNA, as Administratrix of the Estate of AMY ORABINA, and MINDY GRABINA, individually (hereinafter, collectively referred to as "Grabina"), and by plaintiff. STEVEN BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased and Individually (hereinafter, collectively referred to as "Baruch"), whose arguments it adopts and incorporates by reference. "premature" 5. In opposing the motion, itis claimed that itshould be denied as "essential" because discovery, namely a non-party deposition, reindiüs outstanding, and 2 2 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 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 Belli's untimely affirmation in opposition, which was not served at least seven days in advance of the return date of this motion as required pursuant to CPLR §2214(b) as set forth in Marine's notice of motion, but was served the afternoon prior to the return date, it isnonetheless insufficient to raise a triable issue of fact in opposition to Marine's prima facie showing of its entitlement to summary judgment dismissing the complaint of each plaintiff in this consolidated action insofar as asserted against Marine, and dismissing any and all cross-claims asserted against it. 7. In opposition to Marine's motion, Grabina claimed that Marine failed to evidence," demonstrate its prima facie entitlement to summary judgment "with sufficient and that the motion was premature because the deposition of non-party witness, Michelle Canberg ("Ms. Canberg") is outstanding. 8. The court is respectfully referred to Marine's reply to Grabina's affirmation in opposition, and to itsaffirmation in reply to Baruch's opposition. As set evidence" forth in Marine's replies, itsupported itsmotion with "sufficient demonstrating its prima facie entitlement to summary judgment, and in opposition, no question of fact has been raised by any party. 9. Marine's evidence established not only that Romeo was the owner of the vehicle he was operating at the time of the accident (facts neither refuted, let alone, addressed by Belli or any party who has opposed the motion), but also that Romeo was 3 3 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 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,itis 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. 11. And while just short of outright claiming that Romeo is a liar and committed perjury, the plaintiffs whose arguments Belli adopts and incorporates by reference, also asserts that Marine's motion should be denied because an issue exists regarding Romeo's credibility, including whether Ms. Canberg was a passenger in his about." vehicle, and who knows "what else is he being untruthful To this end, they exists" speculate that "the realm of possibility that Romeo is "trying to shield Marine liability" from by not being truthful about facts surrounding the accident. 12. Such assertions are without any merit, and are speculative and disingenuous. They are based on deposition testimony of a non-party witness (Ms. Auer), an EMT who responded to the scene after the accident, and claims that Ms. Cranberg was a passenger in the Romeo vehicle. However, Ms. Auer does not have any first-hand knowledge that Ms. Canberg was a passenger in the Romeo vehicle at the time of the accident. "Q. How did you firstbecome aware of Michelle Canberg, that she was injured and claiming to have been in the pickup truck at the time of the collision? A. I did not say she was injured, she was standing there, someone else came up to me and told me that she was a 4 4 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 passenger in that pickup truck. and that she needed to be evaluated, so 1 went over to her. Q. Who was that person that told you that she was in the pickup truck'? that." A. 1, to thisday. 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 an behalf of Grabina in opposition to the motion). 13. Moreover, testimony placing Ms. Canberg at the scene is not the same as if' proving that Romeo knew Ms. Canberg. and even he did, that he knew she was at the scene. lt does not raise any credibility issue, and is insufficient to defeat Marine's motion. Nor does it prove or raise a triable issue of fact that Ms. Canberg was a passenger in Romeo's vehicle, or that she was being driven by Romeo in furtherance of Marine's business. 14. These assertions are not based on fact, but are speculative, disingenuous, and without any merit. As such, they are insufHcient to raise a triable issue of fact in opposition to Marine's prima facie showing. See La(uso v Afaresccv, 150 AD3d 712 I2d Dept. 2017]; Fredelte v 7'own of Southa~npIon, 95 AD3d 939, 940 [2d Dept. 2012] (" Mere surmise, suspicion. speculation, and conjecture are insufHcient to defeat a motion judgment" for summary ) (Internal citations omitted). See also She>xnan-Schifpran v Costco 8'holesole, Inc., 63 AD3d 1031 I2d Dept. 2009] (summary judgment motion cauld not be defeated by feigned issues). 15. Even assuming, arguendo, that Ms. Canberg was a passenger in the Romeo vehicle, there is not a scintilla of evidence that: 1) she was a Marine customer, or 2) Romeo was driving her in furtherance of Marine's business. 5 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 16. The desperate attempt to raise a question of fact in this regard by characterizing Romeo's use of his vehicle at the time of the accident as being "on his way associate," to a function for his business likewise fails. It is uncontroverted that at the time of the accident, Romeo was on his way to an engagement party-a purely personal "H" motive having nothing to do with Marine's work. (See Exhibit at pp.34-35; Exhibit "I" 34).I pp.31, Simply because the engagement party was for his then business partner, Kristopher Dimon ("Dimon"), does not make itotherwise, 17. Nor is there any merit to Grabina's speculative assertion, which Belli has adopted by reference, that based photograph appearing to show rope in the back of potentially" Romeo's vehicle, that the rope "could have been "used for [Marine's] work purposes." 18. Not only did Romeo testify that he never used his pick-up truck for any "H" work-related things (see Exhibit at p.275, lines 3-13), but so did Dimon during his "I" deposition. (Exhibit at p.15, lines 7-.15). 19. Further, when shown a photograph of the back of Romeo's vehicle at the time of the accident2, Dimon denied that the white rope depicted therein was a type of rope used on Marine's;premises. After testifying to seeing more than one type of rope in "I" the photograph (Exhibit at p.97, lines 20-24), he went on to testify as follows: "Qs I'm talking about the white one, have you ever seen that before on your premises? no." "I" A. Not to my knowledge, (Exhibit at pp.97-98). All remaining references to exhibits are to those annexed to the affirmation in support of Marine's motion. 2 testifiedthat that the back his vehicle at the of Romeo had previously photograph showed of time the "H" .accident.(Exhibit at p.339,lines 14-25), 6 6 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 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. 2L 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 testimony." the accident because "all that was submitted is self-serving deposition This simply is not true. 22. Wholly overlooked and omitted is Dimon's deposition testimony which was submitted in support of Marine's motion. (See Exhibit "I"). As testified to by Dimon, Romeo's pickup truck was never used for anything having to do with Marine's "I" business (Exhibit at pp.15-17, 89), and Romeo's use of that vehicle at the time of the "T" accident had nothing to do with Marine's work. (Exhibit at pp.31, 34). [1" 23. Further, as set forth in Lewis v Rutkovsky, 153 AD3d 450 Dept. 2017] "self-serving," "[t]here is nothing in a legal sense, about deposition testimony that favors the party giving it. Rather, testimony is said to be self-serving when it contradicts prior here." testimony-a situation that does not exist (Internal citation omitted). Nor does it exist here, either. Romeo did not contradict any prior testimony. Rather, he was steadfast in his testimony that he never used his pickup truck for Marine business. M.oreover, Romeo's testimony is not incredible on its face, but is supported by Dimon's testimony. 24. Nor is there any evidentiary basis to support a claim that Ms. Canberg's non-party deposition might provide relevant information, especially in the face of 7 7 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 overwhehning evidence, not speculation, that Romeo was driving his personal vehicle tor personal reasons at the tiine of the accident and not i' furtherance of Marine's business. 25. That discovery may be outstanding does not require denial of a summary judgment motion. See h>fogril v BapIisle, 161 AD3d 847, S48 [2d Dept. 2018] ("A grant of suriim~y judgment is not premature merely because discovery has not been completed" ) (internal citations omitted); lamore v Panapoiclos, 121 AD3d 863 t2d Dept. 2014]. 26. For a summary judgment motion to be denied as premature, the opposing party must "provide an evidentiary basis to suggest that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were in the party." exclusive knowledge and control of the moving Mogul at S48 (internal citations (' omitted). See ufo lowoje, 121 AD3d at 864 mere hope that evidence sufficient to uncovered" defeat the motion might be is an insufficient basis) (internal citations omitted). 27. It has already been shown that there is no evidentiary basis to support the claim that Ms. Canberg's non-party deposition might provide relevant information. Despite the conclusory assertion that the other parties should be given an opportunity to truck,'* depose Ms. Canberg as to 'what she was doing in the pickup there is only speculation that she was in Romeo's vehicle. Likewise, there is only speculation that Ms. Canberg might have been a Marine customer being driven by Romeo in connection with Marine's business at the time of the accident. Such assertions are insufficient to defeat Marine's motion. 8 8 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 28. Nor has it been shown that the movant, in this case, Marine, has control" "exclusive knowledge and of facts essential to oppose the motion, which showing is required to be made when seeking to deny a motion for summary judgment on the basis that it is premature, when like here, there is no evidentiary basis to support the claim that outstanding discovery might lead to relevant evidence. See Mogu/, 161 AD3d at 848. 29. Further, itis disingenuous to claim that the timing of Marine's moving for summary judgment only serves to prejudice the plaintiffs. Rather, any delay in the motion will prejudice Marine in light of the fact that all the facts essential to oppose the motion are known to the parties, which evidence demonstrates that Marine was neither the owner of operator of vehicle being driven by Romeo, nor that the vehicle was being driven in furtherance of itsbusiness. 30. Accordingly, there is no basis to deny Marine's motion as premature, or on the basis that a question of fact exists as to whether Romeo was acting in the course of his employment at the time of the accident, or as to his credibility. Conclusion 31. For all the reasons set forth herein and in the affirmation in support of Marine's motion, Marine should be granted summary judgment dismissing the complaints of each plaintiff in this consolidated action, and that all cross-claims against it should also be dismissed. Dated: Garden City, New York February 18, 2020 Pamela Wolff Cohen 9 9 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NASSAU )ss.: 1, 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 18, 2020 [ served the within REPLY AFFIRMATION: | ] Service by a true copy then:of by depositing in a post-paid wrapper, in an official depositoryunder the exclusive care and officinf depositoryunder the Mail exclusive care and custody of the U.S. Postal Service withinthe New YorkState. addressed to each orthe persons at the following (ast known address set forth after ench name: [ ]Personal a true copy thereof personally by delivering lo cach person named below at the address indicated. 1knew cach person served to be the person Served on paro•therein: mentiom-d and described in said papers as a individual [X | Service by the papers by electronic by transmitting means throughthe NewYork State Unified CourtSystem's clectronic systern. filing an e- I received Electmnic mailfmm the New YorkState Electronic Systerrt indicating Filing that the transmission was received and delivered to all counsel in this action: Mean [ ] Overnight a true by depositing copy enclosed thereof, in a wrapper addressed as shownbelow,intothe custody of UNITED PARCEL SERVICE for ovemight prior delivery, to the latest.time designated by that service for overnight delivery. Upon: THE BIONGIORNO LAW F1RM ,PLLC BLOCK O'TOOLE & MURPHY LLP Anorneys for Plaintif Alicia M. Arundel Attorneys for Plaintif 1415 Kellum Place, Suite 205 Arthur A. Belli,Jr., as Parent and Natural Guardian of Garden City, New York 11530 Stephanie Belli, deceased and Adminisn ator of the Estate (516) 741-4170 of Stephanie Belli 1 Penn Plaza, Suite 5315 JOHN L. JULIANO, P.C. New York, New York 10119 Attorneys for Plaintif Suzanne Schulman, as Administratrix of the BONGIORNO, MONTIGLIO & PALMIER Estate ofBrittany M. Schulman, deceased Attorneys for Defendants, 39 Doyle Court CARLOS F. PINO and East Northport, New York 11731 ULTIMATE CLASS LIMOUSINE, 1NC. (631) 499-9300 200 Old Country Road, Suite 680 Mineola, New York 11501 PARIS & CHAIKEN PLLC (516) 620-4490 Auorneys for Plaintif Olga Lipets 14 Penn Plaza, Suite 2000 LEWIS JOHS AVALLONE VlLES, LLP New York, NY 10122 Attorneys for Defendant, (212). 742-0476 STEVEN D. ROMEO One CA Plaza, Suite 225 LAW OFFICES OF JQSEPH J.TOCK Islandia, New York 11749 Auorney for Plaintif Melissa A. Crai (631)755-0101 963 Route 6. Mahopac, New York 10541 LAW OFFICES OF THOMAS M. VOLZ, PLLC (845) 628-8080 Auorneys for Defendant, TOWN OF SOUTHOLD 280 Smithtown Boulevard Nesconset, New York 1 1767 (631)366-2700 10 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 FRANK 1 LAINE, P.C. Law Office of Vincent D. McNantara Attorney for Plainnf Mindy Grabina, as Adminis!tatrix of the Attorneys for Defendant, Estate ofAmy Grabina, and Mindy Grabina, Individually County of$uffolk 449 S. Oyster Bay Rd. Tower Square Plainview, New York I1803 1045 Oyster Bay Road, Suite 1 (516) 937-10I0 East Norwich, New York 1 1732 (516) 922-9100 SULLIVAN, PAPAIN, BL.OCK, MCGRATH, CANNAVO, P.C. Attorney for Plaintif Steven Baruch as Administrator of LAW OF FICES OF ANDREA G. SAYWYERS the Estate of Lauren Baruch, deceased, and Steven Baruch, Attorneys for Defendant, brdividually Cabot Coach Builders, fne, I140 Franklin Avenue, Suite 200 d/bla Royale Limousine Garden City, New York 11530 P.O. Box 9028 (5l 6) 742-0707 Melville, New York 11747 (631) 501-3077 PEGALIS & ERICKSON, LLC (Notice Only) Attorneyfor Plainaf Joelle Dimonte 1 Hollow Lane, Suite 107 New Hyde Park, New York 1 I042 (516) 684-2900 MARY CQÇfKE Sworn to before me this 18th day of February, 2020 tary Public L LOV C cyNTHIA Notary Public1LO 6783 11 of 12 FILED: SUFFOLK COUNTY CLERK 02/18/2020 04:20 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 633 RECEIVED NYSCEF: 02/18/2020 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 Administratrix of the Estate of AMY GRABINA, and MINDY GRABINA, Individually; STEVEN BARUCH, as Administrator of the Estate of LAUREN BARUCH, deceased and STEVEN BARUCH, Individually; JOELLE DIMONTE; and MELISS A. CRAl, and ARTHUR A. BELL1, as parent and Natural Guardian of STEPHANIE BELL1, deceased, and as the Administrator of THE ESTATE OF STEPHAN1E BELLl, Plaintiffs, against - ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD and COUNTY OF SUFFOLK, CABOT COACH BUILDERS, 1-5" INC. d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES name being fictitiousbut intended to be the remanufacturers, distributors and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. REPLY AFFIRMATION CASCONE & KLUEPFEL, LLP. Attorneys for Defendant - ROMEO DIMON MARINE SERVICE Office and Post Office Address, Telephone 1399 Franklin Avenue, Suite 302 Garden City, New York 11530 (516) 747-1990 (516) 747-1992 Facsimile To: ALL COUNSEL Service of a copyofÏhe within is herebyadmitted, Dated,2/18/2020 forDefeadast- ROMEO DIMON MARINE SERVICE, INC. Attorney(s) 12 of 12