Cioffi v SM Foods, Inc.
Annotate this Case
Download PDF
Cioffi v SM Foods, Inc. 2012 NY Slip Op 33237(U) November 20, 2012 Sup Ct, Westchester County Docket Number: 55391/2011 Judge: Mary H. Smith Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: WESTCHESTER COUNTY CLERK 11/20/2012 1] INDEX NO. 55391/2011 NYSCEF DOC. NO. 269 RECEIVED NYSCEF: 11/20/2012 DECISION AND ORDER FILED & ENTERED // !d/)/12 To commence the statutory period of appeals as of right (CPLR 5513[a]}, you are advised to serve a copy of this Order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK IAS PART, WESTCHESTER COUNTY Present: HON. MARY H. SMITH Supreme Court Justice ---------------------------------------------X FREDERICK M. CIOFFI and ELISABETTA CIOFFI, Plaintiffs, MOTION DATE: 11/16/12 INDEX NO.: 55391/11 -againstSM FOODS, INC., GFI BOSTON, LLC, ATLANTA FOODS INTERNATIONAL, RUSSELL MCCALL'S INC., RUSSELL MCCALL'S INC. d/b/a SHEILA MARIE FOODS, SHEILA MARIE IMPORTS, DOUG JAY, RYDER TRUCK RENTAL, INC., PLM TRAILER LEASING and DANIELE. BURKE, Defendants. ---------------------------------------------x S.M. FOODS, INC., GFI BOSON, LLC PLM TRAILER LEASING and DANIEL BURKE, Third-Party Plaintiffs, -againstVILLAGE OF TUCKAHOE and VINCENT PINTO, Third-Party Defendants. ---------------------------------------------x The following papers numbered 1 to 11 were read on this motion by plaintiffs for an Order pursuant to CPLR 2221 granting reargument and renewal, etc., and on this cross-motion by defendants Russell McCall's Inc. and Jay for an Order pursuant to CPLR 603 directing a separate non-jury trial of plaintiff's injury -1- [* 2] claims prior defendants. to trial of plaintiff's equitable claims against Papers Numbered Notice of Motion - Affirmation {Rice) - Exhs. {A-H) ....... Notice of Cross-Motion - Affirmation {Quinlan) - Exhs. {A-M) Amended Answering Affirmation {Shaprio)- Exhs. (A-B) ....... Answering Affirmation (Grant) - Exhs. {Collectively) ....... Replying Affirmation {Rice) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3 4-6 7-8 9-10 11 Upon the foregoing papers, it is Ordered that this motion and cross-motion are disposed of as follows: The essential facts in this pedestrian knock-down previously have been set forth in this Court's August 13, action 2012, Decision and Order finding that defendant Ryder is entitled to the protection of the Graves Amendment, and thereupon having granted defendant Ryder's then motion for dismissal; the facts shall not be re-stated herein. Presently, plaintiff is moving for reargument and renewal of said Decision and Order, arguing that this Court improperly had engaged in issue determination rather than properly issue finding, that it had erred in accepting moving defendant Ryder's proof "at face value," that the Court erroneously had found the expired lease agreement sufficient notwithstanding that the expired lease never was authenticated, that the Court had failed to consider that defendant Ryder's failure to have retrieved the vehicle upon the expiration of the rental agreement -2- period raises a question [* 3] regarding Ryder's own negligence, that there is no proof that Ryder had the required insurance in place on the subject involved vehicle, and that there exists new evidence supporting the finding that Ryder had violated Federal statutes and Regulations, including specifically the Federal Motor Carrier Safety Act, governing the use and operation of vehicles engaged in interstate commerce which are intended to insure financial responsibility and safety standards and thus it should not be entitled to the protection of the Graves Amendment. In support of his arguments, plaintiff submits an affidavit from retired police officer Christopher Calabrese. Mr. Calabrese therein states that he had conducted a thorough investigation of the records relating to Ryder's leasing of the subject offending vehicle and he concludes, based thereon, that Ryder has engaged in a pattern of criminal wrongdoing and intentional violations of Federal and State regulations relating to public safety, including its failure to have had the subject vehicle identified as one that was being operated by defendant GFI Boston under its Department of Transportation number. In support of his motion for renewal, plaintiff relies upon documents recently obtained through his FOIL requests showing that Ryder has Department been of cited numerous Transportation for -3- times by failing the to New have York its State vehicle [* 4] properly placarded with the name and federal DOT number of the interstate carrier, i.e., defendant GFI Boston LLC. In light of this evidence, plaintiff argues that, given the absence of a valid lease between Ryder and GFI Boston LLC, Ryder had become the de facto carrier which is responsible for providing financial security for the subject vehicle and thus Ryder is removed from the protection of the Graves Amendment. Finally with respect to this aspect of plaintiff's motion, plaintiff argues that defendant Ryder had "fail[ed] road test on Daniel Burke," to conduct a contrary to the rental agreement's provision that Ryder must safety check and driver from GFI Boston LLC or Sheile Marie, and missing from the expired rental agreement is [renter] Mr. Sicaro's date of birth, license number or any proof that Mr. Sicaro was road tested by Ryder. Plaintiff fails to specify whether this argument is in favor of reargument or renewal. Defendant Ryder opposes the motion in all respects, that the Court correctly had dismissed the action arguing against it because it is in the business of renting or leasing motor vehicles, there is no proof of wrongdoing or negligence on Ryder's part, that plaintiff has failed to offer a reasonable excuse for plaintiff's not offering the evidence he now offers, there is no private right of action by an individual for alleged violations of Federal and State law, that any violations were not the proximate cause of -4- [* 5] plaintiff's injuries and that plaintiff's expert is not qualified to offer his opinion as to defendant Ryder's negligence. Plaintiff's motion for reargument and renewal pursuant to CPLR 2221 is granted in the exercise of this Court's discretion and upon the record more fully developed at bar. Upon the granting of reargument and renewal, the Court hereby reverses its earlier determination granting defendant Ryder's motion dismissing the claims against them based upon the Graves Amendment and all previously interposed claims against defendant Ryder are herein restated. The Court finds, affording plaintiff every benefit of every possible inference, that defendant Ryder has failed to sustain its burden as entitled movant to the demonstrating as protection of the a matter of Graves law that Amendment, it that is the supporting affidavits from Nathan Reed and Richard Canty do not authenticate the subject rental/lease agreement, Darden, 26 Misc.3d 1205(A) see Merine v. (N.Y. City. Civ. Ct. 2009), and, noting that the Graves Amendment confers liability immunity only if there is no criminal activity or negligence on the part of the owner, see 49 U.S.C. ยง30106 (a), issues facts as of wrongdoing, the Court finds that there appears to be to whether Ryder had engaged in criminal which wrongdoing preempts its entitlement to Graves Amendment protection, whether Ryder, -5- by permitting defendant GF [* 6] Boston LLC to improperly and illegally use Ryder's DOT registration number, de facto became a motor carrier and not merely a lessor, and as such is not afforded protection under the Graves Amendment, and whether Ryder independently had been negligent in failing properly to have "safety checked" defendant Burke by way of a road test, but see Coppage v. U-Haul Intern, 2011 WL 519227 2011); Sigaran v. Elrac, Inc., 22 Misc.3d llOl(A) 2008), and/or expiration of Misc. 3d to the 1138 (A), protection of have retrieved rental and thus the period, subject see whether the Graves Amendment. (Sup. Ct. Bx. Co. vehicle upon the Elrac, Inc., 19 Luma v. it is (S.D.N.Y. not entitled to the Notwithstanding defendant Ryder's argument to the contrary, the Court finds that the issue of proximate cause is a jury question. See Nowlin v. City of New York, 81 N.Y.2d 81, 89 (1993); Moore v. Gottlieb, 46 A.D.3d 775 (2nct Dept. 2007); Calhoun Addressing next V. Allen, 951 N.Y.S.2d 641 (ALL. Co. 2011). plaintiff's motion for an Order granting amendment of his complaint pursuant to CPLR 3025, subdivision (b), to plead allegations of violations of Federal and State law, joint venture, criminal conduct, alter ego status and entitlement to pierce the corporate veil, and thereby increasing from three to seven the number of pleaded causes of action 1 , it is well-settled 1 ~he Court notes that plaintiff's proposed "Amended Complaint," ann~xed as Exhibit H to his moving papers, properly should be denominated "Second Amended complaint," the first -6- [* 7] that leave granted to amend unless the or supplement amendment pleadings sought is should be palpably freely improper or insufficient as a matter of law, or unless prejudice and surprise directly results from the delay in seeking the amendment. See CPLR 3025, subd. (b); McCasky, Davies, & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755 (1983); Moyse v. Wagner, 66 A.D.3d 976 (2nd Dept. 2009); Bolanowski v. Trustees of Columbia University in City of New York, 21 A.D.3d 340 (2nd Dept. 2005); Santori v. Met Life, 11 A. D. 3d 597 (2nd Dept. 2004) . "The legal sufficiency or merits of a proposed amendment to a proposed pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt.n Dept. Sample v. Levada, 8 A.D.3d 465, 467-468 2004); see, also Shovak v. Lon Island Commercial Bank, A.D.3d 1118, 1120 (2nd Dept. 2008); Benyo v. 1074 (2nd Dept. 2008). Moreover, Sikorjak, 50 50 A.D.3d where an additional theory of liability is based upon the same facts alleged in the original complaint and the defendant underlying these litigation, permission to granted. See causes of had familiarity action serve from an amended the with the outset compliant facts of the ought be Beverage Marketing USA, Inc. v. South Beach Beverage Co., Inc., 20 A.D.3d 439 (2nd Dept. 2005); Barraza v. Sambade, 212 A.D.2d 655 (2~ Dept. 1995); Bobrowsky v. Lexus, 215 A.D.2d 424 amended complaint being dated October 25, 2010. -7- (2~ [* 8] Dept. 1995). Applying the foregoing principles of law to the record at bar, plaintiff's motion for an Order permitting amendment of his complaint is granted. Within ten (10) days after the date hereof, plaintiff shall file and serve the second amended complaint in the form annexed as Exhibit H; defendants shall have the statutory time in which to answer. Addressing next defendants Russell McCall's Inc. d/b/a Atlanta Foods International' s and Jay's cross-motion seeking an Order declaring that this action shall be tried without a jury because the claims against them are equitable in nature, and as such are not subject to jury trials, is denied as premature. CPLR 4102 states that a demand for a jury trial shall be contained in the filed and served note of issue, which filing and service not only has not occurred here, but given the extensive discovery which remains, is a long way off from occurring. Nevertheless, it appears that plaintiff's argument that it is entitled to demand a jury trial upon those claims in which he seeks to pierce the corporate veil or impose alter ego and/or successor corporate liability upon defendants Russell McCall's Inc. and its employee Jay, and thereupon impose monetary damages, has merit; Courts have recognized that, while piercing the corporate veil is, -8- [* 9] as defendants argue, an equitable remedy, whether to find such relief appropriate necessarily rests upon factual inquiries and determinations and thus such inquiry "generally is submitted to the jury." See Wm. Passalacqua Builders, Inc. v. Resnick developers South, Inc., 933 F.2d 931, 135-137 (2nd Cir. 1991); American Protein Corp. v. AB Volvo, 844 F2d 56, 59 (2nd Cir. 1988); David v. Glemby, Co., Inc., Keystone 1102(A) 717 F. Supp. 162, 166 Consultants, Inc. v. (S.D.N.Y. DDR Const. 1989); but see First Services, 22 Misc.3d (Sup. Ct. Qu. Co. 2008). The parties shall appear in the Compliance Conference Part, Room 800, at 9:30 a.m., on December 19, 2012. Dated: November ~O ' 2012 White Plains, New York SMITH J.S.C. Wilson, Bave, Conboy, Cozza & Couzens Attys. For Deft. Ryder Two William Street White, Plains, New York 10601 -9- [* 10] Grant & Longworth, LLP Attys. For Pltfs. 377 Ashford Avenue Dobbs Ferry, New York 10522 Baxter, Smith & Shaprio Attys. For Defts./3rd P. Pltfs. S.M. Foods; GFI Boston; PLM Trailer; Burke 200 Mamaroneck Avenue White Plains, New York 10601 White, Quinlan & Staley, LLP Attys. For Atlanta Foods; Russell McCall's; Sheila Marie; Jay 377 Oak Street, Suite 301 P.O. Box 9304 Garden City, New York 11530 Maynard, O'Connor, Smith & Catalinotto, LLP Attys. For 3~ P. Defts. 6 Tower Place Albany, New York 12203 -10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
