Velasquez v Corporation

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Velasquez v Corporation 2012 NY Slip Op 33859(U) September 11, 2012 Supreme Court, Bronx County Docket Number: 350201/09 Judge: Lizbeth Gonzalez 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. [* 1] FILED Sep 20 2012 Bronx County Clerk SUPREME COURT OF THE ST A TE OF NEW YORK COUNTY OF BRONX: PART PP4 ---------------------------------------------------------------X Wilmer Velasquez, an infant by his mother and natural guardian, Maribel Velasquez. and Maribel Velasquez, individually. Plaintiffs. DECISION and ORDER Index No 350201/09 -againstJose R. Corporation and Juan J. Taik. Defendants. --------------------------------------------------------------X Recitation of the papers considered in reviev·iing the underlying motion for su1nn1al)' judgment as required by CPLR § 2219(a): Notice of Motion and annexed Exhibits and Affidavits .... Notices of Cross-Motion and annexed Exhibits and Affidavits ... ....................... I ....................... 2 Plaintiff Wilmer Velasquez (.. infant plaintiff') and his mother, plaintiff Maribel Velasquez, ("plaintiff Velasquez") claim that the infant plaintiff sustained serious injuries as a result of the defendants' negligence. The plaintiffs allege that the infant plaintiff was lawfully crossing the street when he was strnck by a taxicab operated by defendant Juan J. Taik and owned by defendant Jose R. Corporation. ("Corporation'") on 2/28/08. Defendant Taik moves to dismiss the plaintiffs complaint against him and for summary judgment pursuant to CPLR 3212 on liability grounds. Defendant Corporation cross-moves for the same relief on the same grounds. The plaintiffs crossmove to amend their pleadings. The Alleged Accident On the morning of2/28/08, infant plaintiff was crossing East 137'" Street and Brown Place when he was struck by a taxicab. After the accident. the taxicab stopped but the driver remained in the vehicle. After waiting a few minutes. the driver fled the scene. Isela Bonilla, a witness to the [* 2] FILED Sep 20 2012 Bronx County Clerk accident, observed the taxicab's license plate as T491698C. The plaintiffs' claim for MVAIC nofault benefits was denied on the grounds that the taxicab was insured under American Transit and its policy was in effect on the accident date. The policy holder was identified as defendant Corporation. The New York State Department of Motor Vehicle's ("OMV") expansion search of the license plate number yielded Taik K. Jung as the vehicle's registrant. DISCUSSION It is well settled that summary judgment is a drastic remedy which can only be granted when it is clear that there are no triable issues of fact (Middle Village Associales v Pergamenl Home Centers. Inc., 184 Misc 2d 552 [2000], quoting Alvarez v Pro.1pec1 I Iospita/, 68 NY2d 320 [1986] or where the issue is even debatable. (Slone v Goodson, 200 NYS2d 627 [1960].) Defendant Taik's Motion Defendant Juan J. Taik moves for summary judgment on the ground that he had no involvement in the alleged 2/28/08 accident. The plaintiffs concede that Mr. Taik is a \Vrongly named party. Defendant Corporation presents no opposition to defendant Taik's motion. Defendant Comoration's Cross-Motion Defendant Corporation cross-moves to dismiss the plaintiffs complaint and for summary judgment pursuant to CPLR 3212 on liability grounds. The defendant, like defendant Taik, contends that it had no involvement in the alleged accident. In support of its cross-motion, defendant Corporation proffers a letter and the sworn statement of Franklyn Ortega, an unnamed party but the alleged driver of the subject taxicab. Mr. Ortega asserts in his 6/2/08 statement that he is the sole driver of a livery taxicab bearing license plate number T49 l 698C. the same plate identified by Ms. Bonilla. the accident's eyewitness. His daily tour of duty is from 6PM to 5AM. Mr. Ortega maintains that on 2/28/08, the accident 2 [* 3] FILED Sep 20 2012 Bronx County Clerk date, the taxicab was parked on East l 83'J Street between Southern Boulevard and Garden Street and the car keys were in his possession. He was not in the area of East 13 7'' Street and Brown Place and his taxicab was neither involved in an accident nor made contact with a pedestrian. Mr. Ortega states in his 5/13/08 letter that he is employed by defendant Corporation. He works from 6PM to SAM six days a week. Attached to his letter is the alleged "roll call" from his base, High Class Bronx Limo and C&S. The roll call bearing Mr. Ortega's name and identifying him as driver number 2285 provides an itemized list consisting of a call number and the date, time and location of all passenger pick-ups. Although spaces are allotted for the passenger's destination location and the price charged for each trip, this pertinent information is omitted. According to the roll call, Mr. Ortega worked from 1: l 3PM to 11: l 9PM on 2/28/08, the accident date. Although the roll call establishes that Mr. Ortega was not working at 9: l 9AM on the accident date, the times provided are inconsistent with his 6PM to SAM tour of duty as previously stated in his statement and letter. In opposition to defendant Corporation's motion, the plaintiffs proffer a 411 1/08 New York Motor Vehicle Ko-Fault Insurance Law Cover Letter and a 5/9/08 American Transit Insurance Company letter wherein defendant Corporation is respectively identified as the policy holder and the insured relative to the subject license plate number. The plaintiffs contend that Mr. Ortega signed a motor vehicle accident report wherein Mr. Ortega is identified as the driver; defendant Corporation as the name on the vehicle's registration; T49 I 698C as the plate number; and a 1999 Lincoln as the vehicle's year and make. The person or entity that created the accident report is unknown. Plaintiffs Cross-Motion Infant plaintiff and plaintiffVclasqucz's DMV expansion search of the plate number yielded 3 [* 4] FILED Sep 20 2012 Bronx County Clerk Taik J. Jung as the registrant of the taxicab. The plaintiffs accordingly cross-move to amend their pleadings to remove Juan J. Taik as a named party and replace him with Taik J. Jung. In the absence of prejudice or surprise to the opposing party, leave to amend pleadings is freely granted. (Spitzer v Schussel, 850 NYS 2d 431, quoting Loomis v Civel/a Corinno Constr. Corp., 444 NYS2d 571 [1981].) Here, releasing Juan J. Taik, the wrong party, from the action neither prejudices nor surprises the remaining parties. CONCLUSION After a careful review of the evidence, the Court decides the underlying motions as follows: Defendant Taik' s motion to dismiss the plain ti ff s complaint against him and for summary judgment on liability grounds is granted on consent by the plaintiffs and without opposition from defendant Corporation. Defendant Corporation's cross-motion to dismiss the plaintiffs' complaint against it and for summary judgment pursuant to CPLR 3212 on liability grounds is denied. The plaintiffs proffered sufficient evidence to create a triable issue of fact regarding the corporation's ownership of the taxicab allegedly involved in the subject accident. The plaintiffs' cross-motion to amend their pleadings to remove Juan J. Taik as a named party and replace him with Taik J. Jung is granted without opposition. Defendant Taik, the movant of the original motion, shall serve a copy of this Decision and Order with notice of entry upon the remaining parties within 20 days. This is the Decision and Order of the Court. Dated: September 11, 2012 So ordered, 4 LtZ

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