Jacobs v Nieto

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Jacobs v Nieto 2012 NY Slip Op 30313(U) January 24, 2012 Supreme Court, Nassau County Docket Number: 2684/11 Judge: Karen V. Murphy Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STArE OF NEW YORK TRIAL TERM. PART 11 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen J/ LUCILLE J. JACOBS, individually and AIMEE SCHWARTZ, as the Executrix of the Estate of MYON J. JACOBS, Deceased, Index No. 2681/11 Motion Submitted: 11/22/11 Motion Sequence: 001 Plaintiff(s ), -against- EVERAO B. NIETO, J. TREZZA ASSOCIATES, INC., INOVATIV DESIGNS AND MAINTENANCE, LLC. and JOHN DOE, as unknown driver, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers.......................................................... Reply............................................................................. . Briefs: Plaintiff slPetitioner ' s........................................ Defendant' s/Respondent' s.................................. The plaintiffs , Lucile J. Jacobs , Individually, and Aimee Schwartz , as the Executrix of the Estate of Myron Jacobs , move pursuant to CPLR 93212 , for a an order granting summary judgment as to the issue of the defendants ' liabilty. The underlying action results from an automobile accident , which occurred on November 28 , 2010 on Jericho Turnpike in Syosset , New York. On said date , the automobile operated by the plaintiff, Lucile J. Jacobs , and owned by plaintiff, Myron Jacobs, was struck head on when a 2000 Ford truck crossed the double yellow (line J which divides eastbound [* 2] Block (see and westbound traffic , (and) entered Plaintiffs " westbound lane of travel 3). The subj ect truck was allegedly owned by defendant , J. Trezza Affirmation in Support at Associates , Inc. (hereinafter Trezza), as well as defendant , Innovative Designs and Maintenance , LLC (hereinafter Innovative), and was operated by defendant , Everardo B. Demers ' Affirmation in Opposition at Exh. Bat pp. (see Nieto , an employee of Innovative , 19). As a result of this accident , Mrs. Jacobs suffered physical injuries and Mr. Jacobs was unfortnately kiled (see 3). Block Affirmation in Support at On or about Februar 16 \ 2011 , the plaintiffs commenced the underlying action and now move for summary judgment as to the issue of the defendants ' liabilty for the happening of the subject accident. In support of the instant application , counsel for the plaintiffs ' contends the evidence as adduced herein establishes that defendant Nieto was negligent as a matter oflaw when the truck he was operating crossed over the double yellow line and proceeded into oncoming traffic. Counsel additionally posits that as Mrs. Jacobs was properly proceeding in her lane of traffic she was under no duty to anticipate the truck operated by defendant Nieto would cross-over into opposing traffic. As evidentiary support for said contentions , counsel for the plaintiffs relies principally, although not exclusively, upon the sworn deposition of nonwitness , Allen Hudson , who testified he was a passenger in a Mercedes SUV traveling (see Block Affinnation in Support at Exh. 3 at pp. 10 , 13 , 16, 17 , 18 22). Mr. Hudson stated that he " saw a landscaping truck heading eastbound" which . crossed over the double yellow line 25). at pp. 18 entering the westbound lane of travel and hitting the plaintiffs Plaintiffs ' counsel argues that the defendants can not offer any non-negligent explanation for 26). par westbound on Jericho Turnpike immediately behind the vehicle operated by Mrs. Jacobs ' vehicle (id. (id. the happening of the subject accident thus warranting the relief herein requested at the central contention posited by defendants ' counsel is that inasmuch as the offending truck was not owned by either Trezza Demers ' Affirmation in Support at (see or Innovative , the instant motion must be denied In opposing the plaintiffs ' instant application , 5). More specifically and with particular respect to Trezza , counsel asserts that said defendant " never acquired legal title to the vehicle which is believed to have originally been 4). As to defendant Innovative , counsel contends that " although the truck involved in the accident was intended to have been transferred by Trezza to Innovative as part of a bulk transfer , no such transfer leased" and consequently is not the owner of the subject truck occurred and accordingly Innovative is not the legal owner thereof (id. at (id. I By written agreement executed on September 1 2010 , Trezza , which is in the landscaping business (see Demers agreed to sell to Innovative , which is also in the landscaping business, various accounts and equipment Affirmation in Opposition at Exh. B at p. 25). [* 3] In the instant matter, the Court has carefully reviewed the submissions ofthe paries and upon said review finds that the Plaintiffs have demonstrated their entitlement to (Scott v. Kass , 48 47 A. D.3d Snemyrv. Morales2d 649 (2d Dept. D.3d 785 , 851 N. 2d 489 (2d Dept. , 2008)). It is well settled that " ( c )rossing a double yellow 702 , 850 N. line into the opposing lane of traffic , in violation of Vehicle and Traffic Law g 1126( a), constitutes negligence as a matter oflaw , unless justified by an emergency situation not of judgment as a matter of law with respect to defendant , Everardo Nieto Aparicio, , 2008); 2d 579 (2d 17 A. D.3d 312 , 792 N. s own making (id; Foster v. Sanchez, 2d 671 (2d Dept. , 2010); Dept. , 2005); Barbaruolo v. DiFede 73 A. D.3d 957 , 900 N. 2d 96 (2d Dept. , 2009)). Moreover , a Sullvan v. Mandato 58 A. 3d 714 , 873 N. the driver driver is not required to anticipate that an automobile going in the opposite direction wil 17 A. D.3d 403 , 794 N. cross over into oncoming traffic Here , the aforementioned Snemyr v. Morales-Aparicio 391 (2d Dept. deposition testimony of Mr. Hudson demonstrates that defendant Nieto violated Vehicle and Traffic Law 91126 by crossing over the double yellow line separating the east and westbound (Barbaruolo v. DiFede In opposing the application , the defendants did not in any respect address the issue of Mr. Nieto s negligence but rather confined the opposing arguments to the ownership of the offending truck. Accordingly, the defendants have failed to raise a triable issue of fact 2d 595 (Zuckerman v. City of New York 49 N. 2d 557, 404 N. 2d 718 , 427 N. (Eiclzenwald v. Chaudhry, , supra). , 2005); lanes on Jericho Turnpike and entering an opposing lane of traffic supra). (1980)). As to Defendants Trezza and Innovative , demonstrated their entitlement to summary the Court finds that the plaintiffs have judgment by establishing that Trezza and Innovative were indeed the owners of the subject truck and that the use thereofby defendant Tsadok v. Veneziano 65 A. D.3d 1130 2d 85 Panteleon v. Amaya 85 A. D.3d 993 , 927 N. 885 N. S.2d 336 (2d Dept. (2d Dept. , 2011)). Nieto was permissive (Vehicle and Traffic 9388; , 2009); Vehicle and Traffic Law 9388 (1) provides that the owner of a motor vehicle is liable for the negligence of anyone who operates the vehicle with the owner s express or implied consent" (id. The statute affords a " strong presumption of permissive use. . . , (which) can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle was (Matter of State Farm Mut. Auto. Ins. not operating the vehicle with the owner s consent" 2d 356 (2dDept. , 2006); Tsadokv. Veneziano Co. v. Ellngton 27 A. 3d 567 810 N. supra). Of paricular relevance herein is the term owner, which is defined in VTL 9128 as follows: " . . . a person entitled to the use and possession ofa vehicle or vessel subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise , for a period greater than thirt days. [* 4] this Courts finds that Trezza , as the admitted lessee of the 2000 Ford truck, clearly falls within the purview (VTL of the statute s definition of an owner 9128). As to Innovative , the record establishes that said defendant was a bailee , which had exclusive use of the vehicle for more than the 30 day statutory time frame , and accordingly also falls within the ambit ofVTL 9 128. A bailee is defined as an individual" who receives personal propert from another , and has possession sub judice Applying the foregoing statutory provisions to the matter of but not title to the propert" (Black' s Law Dictionar (9th ed. 2009), bailee). Here included in the defendants ' opposition papers is the deposition of David Parsons , the sole owner of Innovative , who testified inter alia that from the " first week in of September Trezza. " agree( d) for (Innovative). to use the truck. . . . " Mr. Parsons further testified that Innovative did in fact take possession of the truck at that time and intended to ultimately purchase same from Trezza. Thus , contrar to defense counsel' s opposing arguments , the record evidence adduced herein establishes that Trezza , by virte of its status as a lessee , and Innovative , as a bailee having had exclusive use of the truck for a period greater than thirt days , are both owners as contemplated by VTL g 128. In addition to the foregoing, this Court finds that said defendants have failed to rebut (Matter of the presumption that Nieto In the instant matter , the record is State Farm Mut. Auto. Ins. Co. v. Ellngton Innovative s use devoid of any evidence that Trezza , as bailor of the truck and consequently Innovative was able to permit a third person , in the form of (Fil v. Matson Motors, Inc. 183 A. 2d 324 590 defendant Nieto 2d 961 (4 Dept. , 1992)). Morever , Mr. Parsons clearly testified that on the date ofthe plaintiffs ' accident , defendant Nieto was operating the vehicle within the course of his employment as a landscaper with Innovative and as such was clearly operating the truck with (Tsadok v. Veneziano , supra). Innovative s operation of the 2000 Ford truck was permissive , supra). vis a vis , placed any conditions , to operate the vehicle s express consent Based upon the foregoing, the application interposed by the plaintiffs , which seeks an order granting summary judgment as to the issue of the defendants ' liabilty, is hereby Granted. The foregoing constitutes the Order of this Court. Dated: Januar 24 2012 Mineola , N. ENTERED JAN 30 2012 NASSAU COUNTY COUTY CLHK' OPFICE

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