Allstate Ins. Co. v Ram Caterers of Flatbush LLC

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Allstate Ins. Co. v Ram Caterers of Flatbush LLC 2012 NY Slip Op 30466(U) February 29, 2012 Sup Ct, NY County Docket Number: 102116/09 Judge: Judith J. Gische 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. SCANNED ON 31112012 [* 1] Index Number : 1021lW2009 ALLSTATE INSURANCE n I RAM CATERERS OF FLATBUSH LLC Saqwm N u m b :002 - I I SUMMARY JUDGMENT I - MAR 0 1 2012 A NEW YOHK COUNTY CLERKS OFFICE [* 2] SUPREME COURT OF 'WE STATE OF NEW YORK COUNTY OF NEW YORK:PART 10 -- --I_- *----311---11-1- X - ALLSTATEINSURANCE COMPANY ddo ESTER SHWEKY, Pl ¬li.lla Decision and Order -against- F9Wmt: Hon. J. ols& JSC seq No.002 Index N 102116/09 g RAM CATEIUBS OF FLATBUSH LLC,JOHN DOE d/b/a VALET PARKINa SYSTEMS,YOUMER BEKIR, PFLEFERRED P A W SYSTEMS COW,, and MARK BARON d/b/a VALET PARKZNG SYSTEMS, - Defmdam. * _ I - X I Recitation, as ragulrad by CPLR $2219 [a], of the papen considered in the review of thia (these) motion(s): NUmbarad papars d m 3212 w/JEM ixflirm, PM at 4 exhs ................. PlWs f7 1 h zopp wBDF afbn, exh .................................................... . 2 f ' F,.I..L.*E.D.. (Allstate]movm for BXI order, pursuarrt to CPLR 3212, granting summary judgmmt hits favor in the amount of $45,677.68, plus htmst, costs and disbmwmcnts. Since issue has been joined and this motion wag bmught within 180 days of the filing of tho nota of issue, ~umtf181y judgment mlief is available (CPLR5 3212; Brill Y City ofNew Yo& 2 NY3d 648 [2004]). . Facta considerad TbE following facts are not i dispute: n Plaintiffs insurd, Ester Shweky (Shweky), WIZB, at all relevant times, the owner of a 2008 BMW d a n automobile (automobildcar),and the owner of an Allstate automobile [* 3] insurance policy i effect for her c r (the Policy). On January 10,2008, she lent her c r to her n a a daughter, Vivian Tawil (Tawil), who drove it to an evening evant at defendant Ram Catarm of Flstbush, LLC (Ram Caterem), a W r i n g eathlishment on the premises of nonparty Sham Zion Temple, 2030 Ocean Parkway, Brooklyn New Yo&, T a d used the valet p k h g Sarvices offarnd by Ram Caterers t gutsft attanding its events. The valet service, which refers t itself as o o "Parhg Systems," provided Tawil with a valet dckdnwipt i exchange for the vehicle and n key. It is undisputed that defendant Youmar R. Bekir (Bekir) was the valet a#endant who took control of tha vehicle for the purpose parhg it i the naarby vicinity. It is also u n d i s p d that n while driving a few blocks fiom R8m Catcrm, Btkir lost control of the vehlcle a the t intersection of Avenue V and East 3d Street i Brooklyn, and struck onc or mora parked cars. n The plica were called to the scene, and Shweky's car, which sustained extensive damage, wbs towed t nonparty Brooklyn Collision. o Shweky mado a claim against Allstate for indemnificationmder the Policy. A paid m l its insured $45,677.68, pursuant to the turms of the Policy, and then commmccd the instant subrogation action to recover, from tbc party or pattias responsible for the damegc, t amount it h paid its insured, plua interest, costs and disbllrstments. By ~ummofls complaint filed on and February 17,209, A I l W sought m v e r y from Tam Caterers of Flatbush LLC" and from and "Puking Systems." Issue was joined by service of a joint m a r on or about April 14,2009. Thereafter, by notice of motion datsd Scptumhr 18,2009, plaintiff sought an order granting it leave of court: to m e an amendad summons and complaint: pexmitthg it to change the name of dafcndant "Parking Systems" to "VaIct Parking Sy3tmm,"to add as Co-dafendantJ 2 [* 4] Youmer R Bekir, John Doe a fictitious name or entity but intended to identify that individual or entity W a Valet Parking Systams P r e f d Payment System8 Cop. and Mark Bmon d/b/a Valet Parking Systems as dafbndarrts; and to change the caption to rcflact this change. The motion w a s granted by this court s order, dated D & h 17,2009. S h c t was made, and by amended complaint, Allstate alleges, esmtially, that after T m d delivered the car to the care, custody and control of Ram Caterers, John Doe M a Valet Parking Systems, Frefcrred P a p e n t System, Mark Baron, d/b/a Valet Parklng Systems, and Youma Bekir, for the sole purpose of parking the vebicle, the cr was severeIy damaged due t the fdlm of defendants to exercise a o masonable m e of the automobile while it was i their custody and control. As a mdt, A l h n has au&iuocl damages in the sum of $45,677.68. Dafandants sewed answers to tha amended complaint, md following a preliminary CQnfbrcflce,on or about April 29,2010, the parties pursuad discovcry. Documents were uxchmpd, depositions were held, and the note of issue was filed by plaintiff on May 27,20 11. ArgumenQ The hutant motion for summary judgment is predicated on tba well-rccogniztdprinciple that a insurer which hw paid the loss sustained by its insured is entitIed, through subrogation, to n m v e r the loss from the third party or paslim legally responsible for tha loss (WinMemmUr Y Excalslor Irrs. Co., 85 NY2d 577,581 [19951). As the insurer, Allstate s submgafim rights accrue upon payment of tba loss (id. a 582). t In support of its motion, A l b submits copics of transffipts from the depositions of Shweky, Baku end Craig Dnryan (Druyan), an officer and shareholder of P r c f d Patking Paymant Systems Corp., and copios of the following documents: the police reprt (Allme s 3 [* 5] Exhibit 0); Forms W-2 and Tax Statament for lhc year 2007 indicating that BcEr waa two employed and paid by American Valet SwVicas Inc., and by Prehad Payment Systems Corp. (Allstate s Exbibit H ; unsigned Agrwmrnt for Valet parking Services barn) an Ram catarers of Flatbush LLC and Tarking Systems (Allstate s Exhibit J a sworn &davit ) ; fmm Patrick MorganeUi, an appraiser employad by Allstata, ustablishhg that tha vdue of tho . . damage to the h m r d s vehicle, including the insurtd s deductible, totaled $45,677.68 (AllstaWs Exhibit L; tht Actual Cash Valw EvaIustion for the vehicle (Allstate s Reply M., ) Exhibit B ; and what appaars to be two printouts revealing tho mounts paid by Allstate to ita ) insured, to B M W Financial Stnjcts, and to Brighton Collision Inc., including the n u m h of the checks and the dates on which them chmh w m issued,printed and cashed with resp4ct to damagm sustained by Shweky s vehicle on January 10,2008. For the following reason, plaintitrs motion for summary judgment must be denied without prejudice to mewal. It is well settled law that: the proponent of a ~summmy judgment motion must make a prima facie showing of entitlement to judgment 89 a mmer of law, tmdaring suf ¬icient evidence t o demonstrate the absence of any tmtdd issues of h t Failure to make such u. prima facie showkg requires a d a d of the motion, regdmss of the suf!liciancy of the opposiag papars (AIvmez Y Prospact Hosp., 68 N m d 320,324[1986] [itomal citatione omitted]). A review of the deposition testimony r e v d s that, although both Bekir and Dnryan c o d the fact that Bokir was working as a parking valet a Ram Catffars on January 10,2008, t and that he was the attendarrt who had the d d e n t with Shwcky g vehicle, Allstate has failed to submit competent documentaryproof slrfficientto establish its antitlunmt to summary judgment 4 [* 6] (CPLR3212 PI). As sat forth above, Allseata's standing to puraue subrogation i dependant upon proof that s it paid ita insured i f l pursuant to the terms of the Policy (WinRlemnnn v Dccekior Ins. Co.,85 n ul NY2d at 582). An examination of the papers fails to reveal a copy of either th0 Policy or compttmt, admissible proof that payment has h e n made, either by cancalled check, payment voucher or athemiso.' Although defendrmts do not raisa this issuc,Allstate's failure t tandm o the requisite proof In admissible form precIudes this court from granting the motion for summary judgment (Alvurm Y Prospect Hosp., 68 NY2d at 324; Z u c h u n v City o N g York, 49 NY2d f 'w 557,562 [1980]; CPLR 3212 [b]). Accordingly, it Is ORDERED that the motion by AUstate Insmum Company alslo Estar Shwalry for summary judgment is d d c d with leave to renew on proper p a p . Datad: New Yo&, NCW York ' Ftbnrary 29,ZO 12 ENTER: ,JSC Hoa Judith J. MAR 0 1 2012 W NEW YORK COUNTY CLERK'S OFFICE 'It is noteworthy that, at bar doposition, Shweky wm not asked whether paymont was made by Allstate. 5

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