Preview
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
CLYDE OLIVER,
AFFIRMATION IN OPPOSITION
Plaintiff,
TO PLAINTIFF'S APPLICATION
-vs-
FOR AN ORDER TO SHOW
CAUSE
FRADEAU DES AMES POUR CHRIST,
COULANGE FUSLER,
Index No. 504500/2015
CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
GARY H. ABELSON, a duly admitted attorney of the State of New York, upon penalty
of perjury, affirms and states as follows:
1. I am an attorney at law of the State of New York, and a partner with Barclay
Damon LLP, attorneys for defendant Christian Disciples of Christ ("CDC") in the above-entitled
action. As such, I have personal knowledge of the matters stated herein. I make this affirmation
in opposition to plaintiff's application for an order to show cause, filed with this Court on
December 13, 2017.
2. This matter arises out of a motor vehicle accident which occurred on January 11,
2015, in Brooklyn, New York, involving a collision of a van with a pedestrian, plaintiff Clyde
Oliver. It is undisputed that the van in question was owned by defendant Fradeau Des Ames
Pour Christ ("Fradeau"), a Brooklyn church, and operated by defendant Coulange Fusler, a
member of the Fradeau congregation.
3. CDC sought dismissal of plaintiff's action on the grounds that CDC had no
control whatsoever over the van involved in the accident, and had no relationship with Fusler or
anyone else connected with Fradeau which would justify imposition of vicarious liability for the
accident.
14551658.1
1 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
4. On June 27, 2017, this Court granted CDC's motion for summary judgment
(sequence #2) upon plaintiff's failure to appear on the return date of that motion. See Order,
"A."
dated June 27, 2017, attached hereto as Exhibit
5. To have the default order vacated, plaintiff's counsel must provide evidence of an
excusable default and a meritorious cause of action in their moving papers. In this case,
plaintiff's counsel has shown neither and the relief which plaintiff seeks must be denied in all
respects.
6. June 27, 2017 was not the first return date for this motion that plaintiff's counsel
was obliged to diary. CDC first filed its motion to dismiss plaintiff's action more than a year
"B."
earlier, on June 6, 2016. See Notice of Motion, attached hereto as Exhibit
7. CDC's motion was first returnable on July 11, 2106. It was adjourned to October
26, 2016, adjourned again to January 17, 2017, adjourned again to January 31, 2017, adjourned
again to April 25, 2017, and finally adjourned to June 27, 2017. See Appearance Detail printout
"C."
for this action, attached hereto as Exhibit The Court's docket sheet is readily and publicly
available, and plaintiff's counsel has no valid excuse for failing to consult the docket sheet,
particularly in view of the numerous prior adjournments.
8. Moreover, your affirmant was in regular communication by electronic mail with
counsel for plaintiff, reminding plaintiff's counsel that the return date for CDC's motion for
summary judgment was set for June 27, 2017. I sent e-mails to plaintiff's counsel on May 8,
2017, May 16, 2017, June 14, 2017, and June 15, 2017, all addressed the upcoming return date.
"D."
See correspondence attached hereto as Exhibit Moreover, each of the emails in question
- 2 -
14551658.1
2 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
was addressed not but two attorneys at the same firm plaintiff -
to, one, representing Jeremy
Iandolo, Esq., and Anthony Varbero, Esq. Contrary to the protestations in plaintiff counsel's
affirmation, there is no valid excuse for counsel's failure to properly calendar June 27 as the
sixth and final return date for CDC's motion.
9. Contrary to Plaintiff counsel's claim in Paragraph 5 of his Affirmation, plaintiff's
"days"
application is not made within of the granting of the motion but rather almost six (6)
months later. Plaintiff's counsel did file something on or about June 30, 2017 but never followed
through with having the matter heard at that time.
10. Plaintiff's counsel sets forth nothing more than stating the case was supposedly
miscalendared in their office but supplies no further information or detail as to what occurred.
Notably, there are two counsel for plaintiff and neither showed up on the return date.
11. Without more, merely stating that the matter was calendared incorrectly does not
suffice as an excusable default and thus plaintiff's application should be denied on that basis
alone. (See Memo of Law submitted herewith)
12. Furthermore, as amply demonstrated by CDC's submissions and the exhibits
thereto, most notably the depositions of Reverend Christophe Leger, Fradeau's pastor and
founder, and Dr. Sharon E. Watkins of CDC, CDC has absolutely no connection to either the
Fradeau van or its driver involved in the subject accident which would support imposition of
liability on CDC in this case. See Reply Affirmation of Jeffrey A. Domoto, Esq., dated July 6,
2016, attached hereto as Exhibit "E"; Sur-Reply Affirmation of Gary H. Abelson, Esq., dated
June 20, 2017, attached hereto as Exhibit "F"; and Sur-Reply Memorandum of Law, dated June
- 3 -
14551658.1
3 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
"G"
20, 2017, attached hereto as Exhibit and incorporated herein as iffully set forth. (The full
deposition transcripts of Reverend Christophe Leger and Dr. Sharon Watkins, referred to in these
documents, are e-filed at documents 46 and 47 respectively).
13. This is simply an accident involving a van owned by Fradeau and operated by the
defendant Fusler who was a member of the congregation. CDC had no ownership interest in any
vehicle owned by Fradeau, and CDC had no control, maintenance, or operational abilities over
the vehicle owned by Fradeau that was involved in the accident. Defendant Fusler, and for that
matter Rev. Leger, were never employees of the CDC.
14. To establish negligence the plaintiff must demonstrate there was a duty owed to
him by the defendant CDC. In the absence of such a duty there can be no breach and without a
breach there can be no (see memorandum of law - Exhibit G).
liability sur-reply
15. Defendant CDC clearly had no duty to the plaintiff with respect to the vehicle in
question and therefore there can be no liability.
16. Further, plaintiff's counsel asserts that CDC should be held liable for the accident
on the theory of negligent entrustment.
17. However, as set forth in defendant's Sur-Reply Memorandum of Law, negligent
entrustment requires four elements, none of which apply in this case.
18. CDC did not entrust the vehicle owned by Fradeau to the driver, Fusler; they had
no ownership interest in any vehicle owned by Fradeau and they had no control, maintenance or
operational responsibilities over the vehicle that was involved in the accident. Thus there is no
- 4 -
14551658.1
4 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
negligent entrustment cause of action and summary judgment should be granted on that claim.
19. Finally, there is a claim that CDC should be held responsible under a negligent
hiring and/or respondeat superior theory, both of which do not apply.
20. As set forth in the Sur-Reply Memorandum of Law, the doctrine of respondeat
superior renders an employer vicariously liable for torts committed by an employee acting
within the scope of employment.
21. In this case, the testimony is clear that Fusler was not an employee of CDC, nor
was he an employee, for that matter, of Fradeau. Therefore respondeat superior fails as does any
claim of any negligent hiring or negligent retention of an employee since Fusler was not an
employee of Fradeau or CDC but just a member of the congregation. Leger Dep., 57:15-19.
22. In opposing CDC's motion for summary judgment, plaintiff produced no
evidence to raise a triable issue of fact sufficient to defeat the motion of CDC for summary
judgment. Accordingly, the plaintiff has neither demonstrated an excusable default nor a
meritorious cause of action and the order granting summary judgment should not be vacated.
WHEREFORE, your affirmant respectfully requests that this Court deny plaintiff's
application for relief and affirm the Court's order entered on June 27, 2017, dismissing the
complaint against CDC in its entirety, on the merits and with prejudice, together with such other
and further relief as the Court may deem just and proper.
Dated: January 12, 2018
'
Gary H. A
- 5 -
14551658.1
5 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
6 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
At an LA.S. Trial Term, Part Il of the Supreme
Court ofthe Stateof New York, held in and for the
County of Kings, at the Courthouse, located at
Civie Center, Borough ofBrooklyn, City and State
of New York, on the g I ?day
of Tw
~ 20 (3
P R E S E N T :
Ho..L.
Hon. I
Justice
' r )
7
Cal. No. j
"z oa-
~~ C3'
M3~~"U
~r O A 6
Plaintiff(s) Index No. g
- against-
r C-
Q
Qtt 8 ta« ~
d4.~ fnn SAR M~
toad ' ttxw~n>
gA.e.~~~ i ft Il
-ft-C~~~,.
}nn-t'at
c~
C~ X~g.t
4o 'g- in
Defendant(s)
~ "«,v4.. $ c <
The following papers numbered 1 to read on this motion Papers Numbered
Notice of Motion- Order to Show Cause
and Affidavits Annexed
(Affirmations)
Answering Affidavit
(Afñrmation) I
Reply Affidavit
(Affirmation)
Affidavit
(Affirmation)
Pleadings- Exhibits
- Minutes
Stipulations
FiledPapers
h
PQ' ~ck4~c'
pQ,~~~gg ~~A~io~ gg Qeww~> i <
~ C:k«>w> ~s ~lP 5('*q'CPf o~
.I';-.-( ta
t j'4j I
p~r
F &pier. peonly "j ~ffp$r> „,> I>
t®
G
MD
Motion e .#
HON LA RE D. ÂRTIN
Justice of the Supreme Court
LS.C.
EJV-rev tI l1M
~g'-rev
7 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
8 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
NE%'
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------- --------------X
CLYDE OLIVER, Index No.: 504500/2015E
Plaintiff,
NOTICE OF MOTION
-against-
Hon. BemadeMayne, J.S.C.
FRADEAU DES AMES POUR CHRIST COULANGE
FUSLER, CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
-------------------------------------------X
MOTION BY: ADAMS, HANSON & KAPLAN
Attorneys for Defendants
FRADEAU DES AMES POUR CHRIST
COULANGE FUSLER, CHRISTIAN
DISCIPLES OF CHRIST
One Executive Boulevard, Suite 280
Yonkers, New York 10701
((914) 233-1880
(914) 375-4168
Our File No.: 1 64101921-001-JAD
LOCATION: Supreme Court Kings County
360 Adams Street
Brooklyn, NY 11201
Motion Support Office Room 227
RETURN DATE: July 11, 2016 at 9:30 a.m.
RELIEF REQUESTED: a) An Order pursuant to CPLR 3212
dismissing this action on the merits due to
Defendant CHRISTIAN DISCIPLES OF
CHRIST non-involvement in the subject
accident.
b) An Order granting such other and
further relief as this Court may deem just and
proper.
SUPPORTING PAPERS: Affirmation in Support of JEFFREY A.
DOMOTO, ESQ., and allpapers heretofore
had herein.
ANSWERING AFFIDAVITS: Answering Affidavits, ifany, areto be served
no less than seven (7) days prior to the return
1 of 8
9 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
date of this motion or any adjournments
thereof.
Dated: Yonkers, New York
June 9, 2016
('
rr
By:
JEFFREY A. DOMOTO, ESQ.
ADAMS, HANSON 4 KAPLAN
Attorneys for Defendants
FRADEAU DES AMES POUR CHRIST
COULANGE FUSLER, CHRISTIAN
DISCIPLES OF CHRIST
One Executive Boulevard, 7 Suite 280
Yonkers, New York 10701
((914) 233-1880
(914) 375-4168
Our File No.: 154101921-001-JAD
To:
JOSEPH MURE JR. & ASSOCIATES
PlaintiQ'
Plaint''
Attorneys for Plaintiff
26 Court Street, Ste. 2601
Brooklyn, NY 11242
(718) 852-9100
2 of 8
10 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
NE%'
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------X—— —— ——— — Index No.: 703758/2014
CLYDE OLIVER,
Plaintiff, AFFIRMATION IN SUPPORT
-against-
FRADEAU DES AMES POUR CHRIST COULANGE
FUSLER, CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
-----------------X
JEFFREY A. DOMOTO, ESQ., an attorney at law, duly admitted to practice before the
Courts of the State of New York, affirms, under penalty of perjury, the following:
1. I am an attorney associated with ADAMS, HANSON 4 KAPLAN, attorneys for
Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER, CHRISTIAN
DISCIPLES OF CHRIST and as such am familiar with the facts and circumstances herein based
upon the contents of the file maintained in thisoffice.
2. I submit thisAffirmation in Support of the instant motion for an Order dismissing
the Plaintiffs Complaint in its entirety as against Defendant CHRISTIAN DISCIPLES OF
CHRIST.
3. As further discussed below, Defendant CHRISTIAN DISCIPLES OF CHRIST
was not operating a vehicle that was involved in any motor vehicle accident including, but not
limited to the claimed motor vehicle accident involving plaintiff CLYDE OLIVER.
4. For the Court's convenience, the following exhibits will be relied upon in this
motion:
• Exhibit A: InitialPleadings
Exhibit B: Police Accident Report
3 of 8
11 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
• Exhibit C: Sworn affidavit of Dr. Sharon Watkins-General Minister and
President of Defendant CHRISTIAN CHURCH a/lda DISCIPLES OF
CHRIST; and
Exhibit D: Deposition Transcript of Christophe Leger, Pastor of
Defendant FRADEAU DES AMES POUR CHRIST.
PROCEDURAL HISTORY
5. Plaintiff, CLYDE OLIVER, commenced this action by the filing and service of a
Summons and Complaint dated April 15, 2015. Defendants FRADEAU DES AMES POUR
CHRIST, COULANGE FUSLER and CHRISTIAN DISC1PLES OF CHRIST appeared in
this action by service of a Notice of Appearance and Verified Answer on or about May 13, 2015.
The above referenced pleadings are annexed hereto collectively as Exhibit "A".
6. Plaintiff in this matter has not filed the Note of Issue. In light of the foregoing,
Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER and
CHRISTIAN DISCIPLES OF CHRIST's motion isbeing filed in a timely manner.
7. Plaintiff CLYDE OLIVER is claiming personal injuries resulting from a motor
vehicle accident which occurred on January 11, 2015 on Ocean Avenue at or near itsintersection
with Tennis Court in the County of Kings, City and State of New York. This accident involves
Plaintiff CLYDE OLIVER, a pedestrian and a 2008 Ford Van owned by defendant FRADEAU
DES AMES POUR CHRIST and operated by defendant COULANGE FUSLER. See Exhibit
44@'5
"B",.k
THE ALLEGATIONS
8. Lack ofliability on the part of Defendant CHRISTIAN DISCIPLES OF CHRIST
is shown by sworn affidavit Dr. Sharon Watkins, General Minister and President of Christian
Church a/k/a Christian Disciples of Christ. (Annexed hereto as Exhibit "C".) Said affidavit
specifically states:
4 of 8
12 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
• At the time of the subject accident Defendant CHRISTIAN DISCIPLES OF
CHRIST was never in control of nor operated or maintained in any way the
vehicle involved in the subject accident;
.• At the time of the subject accident Defendant CHRISTIAN DISCIPLES OF
CHRIST was never in any way in charge of an employer of, nor in control of
the driver of the vehicle involved in the subject accident;
• Defendant CHRISTIAN DISCIPLES OF CHRIST did not nor have
direct,
the power to direct any of Defendant FRADEAU DES AMES POUR
CHRIST s decisions regarding the hiring, managing, training or firing of any
FRADEAU DES AMES POUR CHRIST's employees, volunteers, members,
staff, drivers or vehicles;
• Defeg4ant CHRISTIAN DI$ÇPILES OF CHRIST and Defendant
FRADEAU
.FRABKAU DES AMES POUR CHRIST are separate legg} entities with
their own governing bodies, employees, human resources staffs, policies
and procedures: and
• There was no employer/employee relationship between Defendant
CHRISTIAN DISCIPLES OF CHRIST and Defendant FRADEAU DES
AMES POUR CHRIST, nor any employee/employer relationship between
Defendant CHRISTIAN DISCPLES OF CHRIST and Defendant
COULANGE FUSLER; and
• Defendant CHRISTIAN DISCIPLES OF CHRIST never had any control,
interest, nor ownership of the vehicle involved in the subject accident and
therefore could not have entrusted such vehicle to Defendant COULANGE
FUSLER.
See Exhibit "C". (Emphasis added)
9. The lack of liability on the part of Defendant CHRISTIAN DISCIPLES OF
CHRIST is further established by the sworn deposition of Defendant FRADEAU DES AMES
POUR CHRIST by Christophe Leger. (Exhibit "D")
Said testimony revealed:
• Christophe Leger isthe Pastor for Defendant FRADEAU DES AMES POUR
CHRIST;
• He founded Defendant FRADEAU DES AMES POUR CHRIST in 1983;
• Defendant FRADEAU DES AMES POUR CHRIST is in no way affmated
with CHRISTIAN DISCIPLES OF CHRIST; and
• Defendant FRADEAU DES AMES POUR CHRIST is a separate
organization from CHRISTIAN DISCIPLES OF CHRIST.
"D"
See Exhibit Page 10 lines 11-25, page 11 lines 2-15, page 12 lines 2-25
and page 13 lines 2-17. (Emphasis added)
5 of 8
13 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
ARGUMENT
plaintiff'
10. "To establish a prima facie case of negligence, a plaintiff must demonstrate the
existence of a duty owed by the defendant to the plaintiff,a breach of thatduty, and thatthe breach
was a proximate cause of the plaintiffs injury". (Demshick v. Communit y Housg, Afgt. ..CCorp., ..3434
A.D.3d 518, 519. 824 N.Y.S.2d 166). .
11. In our case, itis clear based upon the foregoing that at no time was the vehicle
owned by Defendant FRADEAU DES AMES POUR CHRIST and operated by defendant
COULANGE FUSLER under the control or operation of Defendant CHRISTIAN DISCIPLES
OF CHRIST and there isno affiliationor business relationship between the two separate entities.
En light of the foregoing, Defendant CHRISTIAN DISCIPLES OF CHRIST owes no duty to
'
the piaintiff as they were in no way involved in the subject accident. (Emphasis added)
WHEREFORE, itis respectfully requested that an Order be issued and entered granting
summary judgment in favor of the Defendant, CHRISTIAN DISCIPLES OF CHRIST,
dismissing the Complaint of CLYDE OLIVER in itsentirety with prejudice, and for such other
and further reliefas this Honorable Court deems just and proper.
Dated: Yonkers, New York
June 8, 2016
JEFFREY A. DOMOTO, ESQ.
6 of 8
14 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
NE%'
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--.-.____--.--------------..-------------aX
CLYDE OLIVER,
Index No.: 504500/2015E
Plaintiff,
-against-
AFFIDAVIT OF SERVICE
FRADEAU DES AMES POUR CHRIST COULANGE
FUSLER, CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
---------------------------------X — X
STATE OF NEW YORK }
}:SS.:
COUNTY OF WESTCHESTER }
JAY 8 NIX HI, being duly sworn, deposes and says: Deponent isnot a party to the action,
isover 18 years of age and resides in Westchester County.
On June 9, 2016, deponent served the within, NOTICE OF MOTION, AFFIRMATION
IN SUPPORT with EXHIBITS upon the following attorneys in this action, at the addresses
indicted below, which addresses have been designated by said attorneys for that purpose by
depositing a true copy of same enclosed in a properly addressed envelope, in an officialdepository
under the exclusive care and custody of United Postal Service within the State of New York.
TO:
GARY S. PARK, PC
Attorneys for Plaintiff
39-01 Main Street # 608
Flushing, NY 11354
718.445.1300
J Y B N IH
Sworn to before me on
June 9, 2016
MI 1, RKOWER
Notary bile, State of New
York
No. 02ZA5049082
in Westchester
Qualified County
Commission ExpiresSeptember 5, 2017
7 of 8
15 of 50
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015
NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018
Index No.: 504500/2015E
Il.."
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINOS
CLYDE OLIVER,
Plaintiff,
-against-
-ag
FRADEAU DES AMES POUR CHRIST COULANGE FUSLER,
CHRISTIAN DISCIPLES OF CHRIST,
Defendants.
NOTICE OF MOTION, AFFIRMATION and AFFIDAVIT IN SUPPORT with EXHIBITS
ADAMS, HANSON, REGO 4 KAPLAN
ATTORNEYS AND COUNSELORS AT LAW
ATTORNEYS FOR DEFENDANTS
FRADEAU DES AMES POUR CHRIST COULANGE FUSLER,
CHRISTIAN DISCIPLES OF CHRIST
One Executive Boulevard, Suite 280
Yonkers, New York 10701
((914) 233-1880
(914) 3754168
Our File No.: 111426963
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York
State, certifiesthat, upon information and beliefand reasonable inquiry, the contentions contained in theannexed
document are not frivolous.
Dated: June 8, 2016
~~ l
Signature....... ............................................................
Print Signer's Name JEFFREY A, DOMOTO, ESQ.
Service of a copy of the within is hereby
admitted.
Dated: .....................................................................
Attorney(s) for
8 of 8
16 of 50
FILED: KINGS COUNTY CLERK 01/1
Preview
FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS CLYDE OLIVER, AFFIRMATION IN OPPOSITION Plaintiff, TO PLAINTIFF'S APPLICATION -vs- FOR AN ORDER TO SHOW CAUSE FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER, Index No. 504500/2015 CHRISTIAN DISCIPLES OF CHRIST, Defendants. GARY H. ABELSON, a duly admitted attorney of the State of New York, upon penalty of perjury, affirms and states as follows: 1. I am an attorney at law of the State of New York, and a partner with Barclay Damon LLP, attorneys for defendant Christian Disciples of Christ ("CDC") in the above-entitled action. As such, I have personal knowledge of the matters stated herein. I make this affirmation in opposition to plaintiff's application for an order to show cause, filed with this Court on December 13, 2017. 2. This matter arises out of a motor vehicle accident which occurred on January 11, 2015, in Brooklyn, New York, involving a collision of a van with a pedestrian, plaintiff Clyde Oliver. It is undisputed that the van in question was owned by defendant Fradeau Des Ames Pour Christ ("Fradeau"), a Brooklyn church, and operated by defendant Coulange Fusler, a member of the Fradeau congregation. 3. CDC sought dismissal of plaintiff's action on the grounds that CDC had no control whatsoever over the van involved in the accident, and had no relationship with Fusler or anyone else connected with Fradeau which would justify imposition of vicarious liability for the accident. 14551658.1 1 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 4. On June 27, 2017, this Court granted CDC's motion for summary judgment (sequence #2) upon plaintiff's failure to appear on the return date of that motion. See Order, "A." dated June 27, 2017, attached hereto as Exhibit 5. To have the default order vacated, plaintiff's counsel must provide evidence of an excusable default and a meritorious cause of action in their moving papers. In this case, plaintiff's counsel has shown neither and the relief which plaintiff seeks must be denied in all respects. 6. June 27, 2017 was not the first return date for this motion that plaintiff's counsel was obliged to diary. CDC first filed its motion to dismiss plaintiff's action more than a year "B." earlier, on June 6, 2016. See Notice of Motion, attached hereto as Exhibit 7. CDC's motion was first returnable on July 11, 2106. It was adjourned to October 26, 2016, adjourned again to January 17, 2017, adjourned again to January 31, 2017, adjourned again to April 25, 2017, and finally adjourned to June 27, 2017. See Appearance Detail printout "C." for this action, attached hereto as Exhibit The Court's docket sheet is readily and publicly available, and plaintiff's counsel has no valid excuse for failing to consult the docket sheet, particularly in view of the numerous prior adjournments. 8. Moreover, your affirmant was in regular communication by electronic mail with counsel for plaintiff, reminding plaintiff's counsel that the return date for CDC's motion for summary judgment was set for June 27, 2017. I sent e-mails to plaintiff's counsel on May 8, 2017, May 16, 2017, June 14, 2017, and June 15, 2017, all addressed the upcoming return date. "D." See correspondence attached hereto as Exhibit Moreover, each of the emails in question - 2 - 14551658.1 2 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 was addressed not but two attorneys at the same firm plaintiff - to, one, representing Jeremy Iandolo, Esq., and Anthony Varbero, Esq. Contrary to the protestations in plaintiff counsel's affirmation, there is no valid excuse for counsel's failure to properly calendar June 27 as the sixth and final return date for CDC's motion. 9. Contrary to Plaintiff counsel's claim in Paragraph 5 of his Affirmation, plaintiff's "days" application is not made within of the granting of the motion but rather almost six (6) months later. Plaintiff's counsel did file something on or about June 30, 2017 but never followed through with having the matter heard at that time. 10. Plaintiff's counsel sets forth nothing more than stating the case was supposedly miscalendared in their office but supplies no further information or detail as to what occurred. Notably, there are two counsel for plaintiff and neither showed up on the return date. 11. Without more, merely stating that the matter was calendared incorrectly does not suffice as an excusable default and thus plaintiff's application should be denied on that basis alone. (See Memo of Law submitted herewith) 12. Furthermore, as amply demonstrated by CDC's submissions and the exhibits thereto, most notably the depositions of Reverend Christophe Leger, Fradeau's pastor and founder, and Dr. Sharon E. Watkins of CDC, CDC has absolutely no connection to either the Fradeau van or its driver involved in the subject accident which would support imposition of liability on CDC in this case. See Reply Affirmation of Jeffrey A. Domoto, Esq., dated July 6, 2016, attached hereto as Exhibit "E"; Sur-Reply Affirmation of Gary H. Abelson, Esq., dated June 20, 2017, attached hereto as Exhibit "F"; and Sur-Reply Memorandum of Law, dated June - 3 - 14551658.1 3 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 "G" 20, 2017, attached hereto as Exhibit and incorporated herein as iffully set forth. (The full deposition transcripts of Reverend Christophe Leger and Dr. Sharon Watkins, referred to in these documents, are e-filed at documents 46 and 47 respectively). 13. This is simply an accident involving a van owned by Fradeau and operated by the defendant Fusler who was a member of the congregation. CDC had no ownership interest in any vehicle owned by Fradeau, and CDC had no control, maintenance, or operational abilities over the vehicle owned by Fradeau that was involved in the accident. Defendant Fusler, and for that matter Rev. Leger, were never employees of the CDC. 14. To establish negligence the plaintiff must demonstrate there was a duty owed to him by the defendant CDC. In the absence of such a duty there can be no breach and without a breach there can be no (see memorandum of law - Exhibit G). liability sur-reply 15. Defendant CDC clearly had no duty to the plaintiff with respect to the vehicle in question and therefore there can be no liability. 16. Further, plaintiff's counsel asserts that CDC should be held liable for the accident on the theory of negligent entrustment. 17. However, as set forth in defendant's Sur-Reply Memorandum of Law, negligent entrustment requires four elements, none of which apply in this case. 18. CDC did not entrust the vehicle owned by Fradeau to the driver, Fusler; they had no ownership interest in any vehicle owned by Fradeau and they had no control, maintenance or operational responsibilities over the vehicle that was involved in the accident. Thus there is no - 4 - 14551658.1 4 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 negligent entrustment cause of action and summary judgment should be granted on that claim. 19. Finally, there is a claim that CDC should be held responsible under a negligent hiring and/or respondeat superior theory, both of which do not apply. 20. As set forth in the Sur-Reply Memorandum of Law, the doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of employment. 21. In this case, the testimony is clear that Fusler was not an employee of CDC, nor was he an employee, for that matter, of Fradeau. Therefore respondeat superior fails as does any claim of any negligent hiring or negligent retention of an employee since Fusler was not an employee of Fradeau or CDC but just a member of the congregation. Leger Dep., 57:15-19. 22. In opposing CDC's motion for summary judgment, plaintiff produced no evidence to raise a triable issue of fact sufficient to defeat the motion of CDC for summary judgment. Accordingly, the plaintiff has neither demonstrated an excusable default nor a meritorious cause of action and the order granting summary judgment should not be vacated. WHEREFORE, your affirmant respectfully requests that this Court deny plaintiff's application for relief and affirm the Court's order entered on June 27, 2017, dismissing the complaint against CDC in its entirety, on the merits and with prejudice, together with such other and further relief as the Court may deem just and proper. Dated: January 12, 2018 ' Gary H. A - 5 - 14551658.1 5 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 6 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 At an LA.S. Trial Term, Part Il of the Supreme Court ofthe Stateof New York, held in and for the County of Kings, at the Courthouse, located at Civie Center, Borough ofBrooklyn, City and State of New York, on the g I ?day of Tw ~ 20 (3 P R E S E N T : Ho..L. Hon. I Justice ' r ) 7 Cal. No. j "z oa- ~~ C3' M3~~"U ~r O A 6 Plaintiff(s) Index No. g - against- r C- Q Qtt 8 ta« ~ d4.~ fnn SAR M~ toad ' ttxw~n> gA.e.~~~ i ft Il -ft-C~~~,. }nn-t'at c~ C~ X~g.t 4o 'g- in Defendant(s) ~ "«,v4.. $ c < The following papers numbered 1 to read on this motion Papers Numbered Notice of Motion- Order to Show Cause and Affidavits Annexed (Affirmations) Answering Affidavit (Afñrmation) I Reply Affidavit (Affirmation) Affidavit (Affirmation) Pleadings- Exhibits - Minutes Stipulations FiledPapers h PQ' ~ck4~c' pQ,~~~gg ~~A~io~ gg Qeww~> i < ~ C:k«>w> ~s ~lP 5('*q'CPf o~ .I';-.-( ta t j'4j I p~r F &pier. peonly "j ~ffp$r> „,> I> t® G MD Motion e .# HON LA RE D. ÂRTIN Justice of the Supreme Court LS.C. EJV-rev tI l1M ~g'-rev 7 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 8 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 NE%' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------- --------------X CLYDE OLIVER, Index No.: 504500/2015E Plaintiff, NOTICE OF MOTION -against- Hon. BemadeMayne, J.S.C. FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST, Defendants. -------------------------------------------X MOTION BY: ADAMS, HANSON & KAPLAN Attorneys for Defendants FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST One Executive Boulevard, Suite 280 Yonkers, New York 10701 ((914) 233-1880 (914) 375-4168 Our File No.: 1 64101921-001-JAD LOCATION: Supreme Court Kings County 360 Adams Street Brooklyn, NY 11201 Motion Support Office Room 227 RETURN DATE: July 11, 2016 at 9:30 a.m. RELIEF REQUESTED: a) An Order pursuant to CPLR 3212 dismissing this action on the merits due to Defendant CHRISTIAN DISCIPLES OF CHRIST non-involvement in the subject accident. b) An Order granting such other and further relief as this Court may deem just and proper. SUPPORTING PAPERS: Affirmation in Support of JEFFREY A. DOMOTO, ESQ., and allpapers heretofore had herein. ANSWERING AFFIDAVITS: Answering Affidavits, ifany, areto be served no less than seven (7) days prior to the return 1 of 8 9 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 date of this motion or any adjournments thereof. Dated: Yonkers, New York June 9, 2016 (' rr By: JEFFREY A. DOMOTO, ESQ. ADAMS, HANSON 4 KAPLAN Attorneys for Defendants FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST One Executive Boulevard, 7 Suite 280 Yonkers, New York 10701 ((914) 233-1880 (914) 375-4168 Our File No.: 154101921-001-JAD To: JOSEPH MURE JR. & ASSOCIATES PlaintiQ' Plaint'' Attorneys for Plaintiff 26 Court Street, Ste. 2601 Brooklyn, NY 11242 (718) 852-9100 2 of 8 10 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 NE%' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------X—— —— ——— — Index No.: 703758/2014 CLYDE OLIVER, Plaintiff, AFFIRMATION IN SUPPORT -against- FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST, Defendants. -----------------X JEFFREY A. DOMOTO, ESQ., an attorney at law, duly admitted to practice before the Courts of the State of New York, affirms, under penalty of perjury, the following: 1. I am an attorney associated with ADAMS, HANSON 4 KAPLAN, attorneys for Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST and as such am familiar with the facts and circumstances herein based upon the contents of the file maintained in thisoffice. 2. I submit thisAffirmation in Support of the instant motion for an Order dismissing the Plaintiffs Complaint in its entirety as against Defendant CHRISTIAN DISCIPLES OF CHRIST. 3. As further discussed below, Defendant CHRISTIAN DISCIPLES OF CHRIST was not operating a vehicle that was involved in any motor vehicle accident including, but not limited to the claimed motor vehicle accident involving plaintiff CLYDE OLIVER. 4. For the Court's convenience, the following exhibits will be relied upon in this motion: • Exhibit A: InitialPleadings Exhibit B: Police Accident Report 3 of 8 11 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 • Exhibit C: Sworn affidavit of Dr. Sharon Watkins-General Minister and President of Defendant CHRISTIAN CHURCH a/lda DISCIPLES OF CHRIST; and Exhibit D: Deposition Transcript of Christophe Leger, Pastor of Defendant FRADEAU DES AMES POUR CHRIST. PROCEDURAL HISTORY 5. Plaintiff, CLYDE OLIVER, commenced this action by the filing and service of a Summons and Complaint dated April 15, 2015. Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER and CHRISTIAN DISC1PLES OF CHRIST appeared in this action by service of a Notice of Appearance and Verified Answer on or about May 13, 2015. The above referenced pleadings are annexed hereto collectively as Exhibit "A". 6. Plaintiff in this matter has not filed the Note of Issue. In light of the foregoing, Defendants FRADEAU DES AMES POUR CHRIST, COULANGE FUSLER and CHRISTIAN DISCIPLES OF CHRIST's motion isbeing filed in a timely manner. 7. Plaintiff CLYDE OLIVER is claiming personal injuries resulting from a motor vehicle accident which occurred on January 11, 2015 on Ocean Avenue at or near itsintersection with Tennis Court in the County of Kings, City and State of New York. This accident involves Plaintiff CLYDE OLIVER, a pedestrian and a 2008 Ford Van owned by defendant FRADEAU DES AMES POUR CHRIST and operated by defendant COULANGE FUSLER. See Exhibit 44@'5 "B",.k THE ALLEGATIONS 8. Lack ofliability on the part of Defendant CHRISTIAN DISCIPLES OF CHRIST is shown by sworn affidavit Dr. Sharon Watkins, General Minister and President of Christian Church a/k/a Christian Disciples of Christ. (Annexed hereto as Exhibit "C".) Said affidavit specifically states: 4 of 8 12 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 • At the time of the subject accident Defendant CHRISTIAN DISCIPLES OF CHRIST was never in control of nor operated or maintained in any way the vehicle involved in the subject accident; .• At the time of the subject accident Defendant CHRISTIAN DISCIPLES OF CHRIST was never in any way in charge of an employer of, nor in control of the driver of the vehicle involved in the subject accident; • Defendant CHRISTIAN DISCIPLES OF CHRIST did not nor have direct, the power to direct any of Defendant FRADEAU DES AMES POUR CHRIST s decisions regarding the hiring, managing, training or firing of any FRADEAU DES AMES POUR CHRIST's employees, volunteers, members, staff, drivers or vehicles; • Defeg4ant CHRISTIAN DI$ÇPILES OF CHRIST and Defendant FRADEAU .FRABKAU DES AMES POUR CHRIST are separate legg} entities with their own governing bodies, employees, human resources staffs, policies and procedures: and • There was no employer/employee relationship between Defendant CHRISTIAN DISCIPLES OF CHRIST and Defendant FRADEAU DES AMES POUR CHRIST, nor any employee/employer relationship between Defendant CHRISTIAN DISCPLES OF CHRIST and Defendant COULANGE FUSLER; and • Defendant CHRISTIAN DISCIPLES OF CHRIST never had any control, interest, nor ownership of the vehicle involved in the subject accident and therefore could not have entrusted such vehicle to Defendant COULANGE FUSLER. See Exhibit "C". (Emphasis added) 9. The lack of liability on the part of Defendant CHRISTIAN DISCIPLES OF CHRIST is further established by the sworn deposition of Defendant FRADEAU DES AMES POUR CHRIST by Christophe Leger. (Exhibit "D") Said testimony revealed: • Christophe Leger isthe Pastor for Defendant FRADEAU DES AMES POUR CHRIST; • He founded Defendant FRADEAU DES AMES POUR CHRIST in 1983; • Defendant FRADEAU DES AMES POUR CHRIST is in no way affmated with CHRISTIAN DISCIPLES OF CHRIST; and • Defendant FRADEAU DES AMES POUR CHRIST is a separate organization from CHRISTIAN DISCIPLES OF CHRIST. "D" See Exhibit Page 10 lines 11-25, page 11 lines 2-15, page 12 lines 2-25 and page 13 lines 2-17. (Emphasis added) 5 of 8 13 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 ARGUMENT plaintiff' 10. "To establish a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty owed by the defendant to the plaintiff,a breach of thatduty, and thatthe breach was a proximate cause of the plaintiffs injury". (Demshick v. Communit y Housg, Afgt. ..CCorp., ..3434 A.D.3d 518, 519. 824 N.Y.S.2d 166). . 11. In our case, itis clear based upon the foregoing that at no time was the vehicle owned by Defendant FRADEAU DES AMES POUR CHRIST and operated by defendant COULANGE FUSLER under the control or operation of Defendant CHRISTIAN DISCIPLES OF CHRIST and there isno affiliationor business relationship between the two separate entities. En light of the foregoing, Defendant CHRISTIAN DISCIPLES OF CHRIST owes no duty to ' the piaintiff as they were in no way involved in the subject accident. (Emphasis added) WHEREFORE, itis respectfully requested that an Order be issued and entered granting summary judgment in favor of the Defendant, CHRISTIAN DISCIPLES OF CHRIST, dismissing the Complaint of CLYDE OLIVER in itsentirety with prejudice, and for such other and further reliefas this Honorable Court deems just and proper. Dated: Yonkers, New York June 8, 2016 JEFFREY A. DOMOTO, ESQ. 6 of 8 14 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 NE%' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --.-.____--.--------------..-------------aX CLYDE OLIVER, Index No.: 504500/2015E Plaintiff, -against- AFFIDAVIT OF SERVICE FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST, Defendants. ---------------------------------X — X STATE OF NEW YORK } }:SS.: COUNTY OF WESTCHESTER } JAY 8 NIX HI, being duly sworn, deposes and says: Deponent isnot a party to the action, isover 18 years of age and resides in Westchester County. On June 9, 2016, deponent served the within, NOTICE OF MOTION, AFFIRMATION IN SUPPORT with EXHIBITS upon the following attorneys in this action, at the addresses indicted below, which addresses have been designated by said attorneys for that purpose by depositing a true copy of same enclosed in a properly addressed envelope, in an officialdepository under the exclusive care and custody of United Postal Service within the State of New York. TO: GARY S. PARK, PC Attorneys for Plaintiff 39-01 Main Street # 608 Flushing, NY 11354 718.445.1300 J Y B N IH Sworn to before me on June 9, 2016 MI 1, RKOWER Notary bile, State of New York No. 02ZA5049082 in Westchester Qualified County Commission ExpiresSeptember 5, 2017 7 of 8 15 of 50 FILED: KINGS COUNTY CLERK 01/16/2018 10:14 AM INDEX NO. 504500/2015 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 01/16/2018 Index No.: 504500/2015E Il.." SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINOS CLYDE OLIVER, Plaintiff, -against- -ag FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST, Defendants. NOTICE OF MOTION, AFFIRMATION and AFFIDAVIT IN SUPPORT with EXHIBITS ADAMS, HANSON, REGO 4 KAPLAN ATTORNEYS AND COUNSELORS AT LAW ATTORNEYS FOR DEFENDANTS FRADEAU DES AMES POUR CHRIST COULANGE FUSLER, CHRISTIAN DISCIPLES OF CHRIST One Executive Boulevard, Suite 280 Yonkers, New York 10701 ((914) 233-1880 (914) 3754168 Our File No.: 111426963 Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifiesthat, upon information and beliefand reasonable inquiry, the contentions contained in theannexed document are not frivolous. Dated: June 8, 2016 ~~ l Signature....... ............................................................ Print Signer's Name JEFFREY A, DOMOTO, ESQ. Service of a copy of the within is hereby admitted. Dated: ..................................................................... Attorney(s) for 8 of 8 16 of 50 FILED: KINGS COUNTY CLERK 01/1