Preview
FILED: RICHMOND COUNTY CLERK 05/10/2019 03:26 PM INDEX NO. 750035/2018
NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 05/10/2019
File No. 25319
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____--________-------____________---------X AFFIRMATION IN
ESTHER DIPILATO, SUPPORT
Plaintiff,
-against- INDEX #: 750035/2018
ANDREW SCIBELLI, SJ FUEL CO INC,
ANTHONY DIPILATO and ALFRED DOTTARIO, JR.
Defendants,
X
Lee M. Huttner an attorney at law duly licensed to practice as such in the courts of the
State of New York affirms and states under penalties of perjury that:
That I am associated with the attorney for the plaintiff(s) herein and am familiar with the
facts and circumstances herein, except as to those alleged upon information and belief, and as to
those I verily believe them to be true.
That I make this affirmation in support of Plaintiffs Motion deeming admissions contaiñed
in Plaintiff's Notice to Admit admitted and for such other and further relief as to this Honorable
Court may seem just and proper.
That plaintiff submitted a Notice to Admit to Defendant(s) ANDREW SCIBELLI AND
SJ FUEL CO., INC. on February 25, 2019 requesting written admissions as to Defendant(s)
ANDREW SCIBELLI AND SJ FUEL CO., INC. The following list contains those written
admissions that have not been properly responded to:
1. On 09/01/2016 Motor vehicle bearing Registration # CPH3411 NY State was then
owned by defendant SJ FUEL CO., INC.
2. On 09/01/2016 Motor vehicle bearing Registration # CPH3411 NY State was then
operated by defendant ANDREW SCIBELLI.
3. On 09/01/2016, the defendant, ANDREW SCIBELLI, operated a motor vehicle
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bearing registration number CPH3411 NY State with the knowledge, permission and
consent of defendant SJ FUEL CO. INC.
4. On 09/01/2016 the defendant, SJ FUEL CO., INC., maintained the motor vehicle
bearing registration number CPH3411 New York State.
5. On 09/01/2016 the defendant, SJ FUEL CO., INC., managed the motor vehicle bearing
registration number CPH3411 New York State.
6. On 09/01/2016, the defendant, ANDREW SCIBELLI controlled the motor vehicle
bearing registration number CPH3411 New York State.
7. On 09/01/2016, the defendant. ANDREW SCIBELLI, controlled a motor vehicle
bearing New York registration number CPH3411 New York State with the knowledge,
permission and consent of defendant SJ FUEL CO. INC.
8. That on 09/01/2016, at Benton Avenue at or near its intersection with Jerome Avenue,
in the county of Richmond, City and State of New York, the aforesaid motor vehicle
bearing registration number CPH3411 New York State, came in contact with the
vehicle bearing registration number GWV3117 New York State.
(See Notice to Admit annexed hereto as Exhibit "A")
Pursuant to CPLR §3123(a), plaintiff's notice to admit sought to affirm matters of fact,
upon reasonable belief, as to which there could be no substantial dispute at the trial and which
were within the knowledge of defendant or could have been ascertained with reasonable inquiry.
Therefore, defendant was obligated to respond to said notice to admit in a meaningful
way with either: admissions, denials, qualifications, or a sworn statement setting forth why
defendant couldn't truthfully admit or deny these matters. [See CPLR § 3123(a)]. However, as
outlined below, no such response was given thus requiring matters contained in the notice to
admit be admitted.
That Defendant(s) ANDREW SCIBELLI AND SJ FUEL CO., INC. served upon Plaintiff
a response to Plaintiff's Notice to Admit on April 18, 2019 containing blanket objections. (See
Defendant's Response to Notice to Admit annexed hereto as Exhibit "B") Even after Defense
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Counsel was given numerous courtesies in Plaintiff's counsel granting multiple adjournments so
that they could obtain information necessary to respond to the Notice to Admit in a meaningful
manner. Instead they have provided a non-response.
Plaintiff cannot be compelled to accept such a response to a notice to admit. Upon
examination of defendant's response, itis clear that the blanket objections deeming the
admissions to require a legal conclusion are improper as the matters contained in the notice to
admit are readily ascertainable and within the knowledge of the defendants without the
requirement of a legal conclusion. Defendant's response should not be considered as a response
at allunder the prevailing case law, and without a response within twenty days of the notice, the
matters contained within the notice to admit be rightly admitted.
Further, Defendant(s) ANDREW SCIBELLI AND SJ FUEL CO., INC. response proves to
be frivolous in nature in that they did not respond to undisputable facts. Namely, that Defendant
ANDREW SCIBELLI while operating a vehicle that was registered to Defendant SJ FUEL CO.
INC. a collision occurred between two vehicles on September 1, 2016 whereby (See Certified
Police Report annexed hereto as Exhibit "C") And yet, Defendant(s) in their response to
Plaintiff's Notice to Admit do not even admit to the ownership and operation of said vehicle.
That due to the impropriety of defendant's response in both form and substance, itis
respectfully requested that the affirmations in Plaintiff's Notice to Admit be admitted at this
time.
WHEREFORE, itis respectfully requested that plaintiffs st motion be granted in all
respects, and for such other and further relief as to this Honora le may seem just and
proper.
Lee er Esq.
SUBIN AS OCIATES LLP
Attorneys for Plaintiff(s)
150 Broadway, Floor 23
New York, New York 10038
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Preview
FILED: RICHMOND COUNTY CLERK 05/10/2019 03:26 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 05/10/2019 File No. 25319 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND _____--________-------____________---------X AFFIRMATION IN ESTHER DIPILATO, SUPPORT Plaintiff, -against- INDEX #: 750035/2018 ANDREW SCIBELLI, SJ FUEL CO INC, ANTHONY DIPILATO and ALFRED DOTTARIO, JR. Defendants, X Lee M. Huttner an attorney at law duly licensed to practice as such in the courts of the State of New York affirms and states under penalties of perjury that: That I am associated with the attorney for the plaintiff(s) herein and am familiar with the facts and circumstances herein, except as to those alleged upon information and belief, and as to those I verily believe them to be true. That I make this affirmation in support of Plaintiffs Motion deeming admissions contaiñed in Plaintiff's Notice to Admit admitted and for such other and further relief as to this Honorable Court may seem just and proper. That plaintiff submitted a Notice to Admit to Defendant(s) ANDREW SCIBELLI AND SJ FUEL CO., INC. on February 25, 2019 requesting written admissions as to Defendant(s) ANDREW SCIBELLI AND SJ FUEL CO., INC. The following list contains those written admissions that have not been properly responded to: 1. On 09/01/2016 Motor vehicle bearing Registration # CPH3411 NY State was then owned by defendant SJ FUEL CO., INC. 2. On 09/01/2016 Motor vehicle bearing Registration # CPH3411 NY State was then operated by defendant ANDREW SCIBELLI. 3. On 09/01/2016, the defendant, ANDREW SCIBELLI, operated a motor vehicle 1 of 3 FILED: RICHMOND COUNTY CLERK 05/10/2019 03:26 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 05/10/2019 bearing registration number CPH3411 NY State with the knowledge, permission and consent of defendant SJ FUEL CO. INC. 4. On 09/01/2016 the defendant, SJ FUEL CO., INC., maintained the motor vehicle bearing registration number CPH3411 New York State. 5. On 09/01/2016 the defendant, SJ FUEL CO., INC., managed the motor vehicle bearing registration number CPH3411 New York State. 6. On 09/01/2016, the defendant, ANDREW SCIBELLI controlled the motor vehicle bearing registration number CPH3411 New York State. 7. On 09/01/2016, the defendant. ANDREW SCIBELLI, controlled a motor vehicle bearing New York registration number CPH3411 New York State with the knowledge, permission and consent of defendant SJ FUEL CO. INC. 8. That on 09/01/2016, at Benton Avenue at or near its intersection with Jerome Avenue, in the county of Richmond, City and State of New York, the aforesaid motor vehicle bearing registration number CPH3411 New York State, came in contact with the vehicle bearing registration number GWV3117 New York State. (See Notice to Admit annexed hereto as Exhibit "A") Pursuant to CPLR §3123(a), plaintiff's notice to admit sought to affirm matters of fact, upon reasonable belief, as to which there could be no substantial dispute at the trial and which were within the knowledge of defendant or could have been ascertained with reasonable inquiry. Therefore, defendant was obligated to respond to said notice to admit in a meaningful way with either: admissions, denials, qualifications, or a sworn statement setting forth why defendant couldn't truthfully admit or deny these matters. [See CPLR § 3123(a)]. However, as outlined below, no such response was given thus requiring matters contained in the notice to admit be admitted. That Defendant(s) ANDREW SCIBELLI AND SJ FUEL CO., INC. served upon Plaintiff a response to Plaintiff's Notice to Admit on April 18, 2019 containing blanket objections. (See Defendant's Response to Notice to Admit annexed hereto as Exhibit "B") Even after Defense 2 of 3 FILED: RICHMOND COUNTY CLERK 05/10/2019 03:26 PM INDEX NO. 750035/2018 NYSCEF DOC. NO. 222 RECEIVED NYSCEF: 05/10/2019 Counsel was given numerous courtesies in Plaintiff's counsel granting multiple adjournments so that they could obtain information necessary to respond to the Notice to Admit in a meaningful manner. Instead they have provided a non-response. Plaintiff cannot be compelled to accept such a response to a notice to admit. Upon examination of defendant's response, itis clear that the blanket objections deeming the admissions to require a legal conclusion are improper as the matters contained in the notice to admit are readily ascertainable and within the knowledge of the defendants without the requirement of a legal conclusion. Defendant's response should not be considered as a response at allunder the prevailing case law, and without a response within twenty days of the notice, the matters contained within the notice to admit be rightly admitted. Further, Defendant(s) ANDREW SCIBELLI AND SJ FUEL CO., INC. response proves to be frivolous in nature in that they did not respond to undisputable facts. Namely, that Defendant ANDREW SCIBELLI while operating a vehicle that was registered to Defendant SJ FUEL CO. INC. a collision occurred between two vehicles on September 1, 2016 whereby (See Certified Police Report annexed hereto as Exhibit "C") And yet, Defendant(s) in their response to Plaintiff's Notice to Admit do not even admit to the ownership and operation of said vehicle. That due to the impropriety of defendant's response in both form and substance, itis respectfully requested that the affirmations in Plaintiff's Notice to Admit be admitted at this time. WHEREFORE, itis respectfully requested that plaintiffs st motion be granted in all respects, and for such other and further relief as to this Honora le may seem just and proper. Lee er Esq. SUBIN AS OCIATES LLP Attorneys for Plaintiff(s) 150 Broadway, Floor 23 New York, New York 10038 3 of 3