Marino v City of New York
Annotate this CaseDecided on August 2, 2013
Supreme Court, Richmond County
Alice Marino, Plaintiff,
against
City of New York, New York City Department of Environmental Protection, Richard Morales, Extreme Towing and Recovery, Inc., and Joseph Lent, Defendants.
102331/05
Thomas P. Aliotta, J.
The following papers numbered 1 to 3 were marked fully submitted on the 12th day of
June, 2013:
Papers
Numbered
Order to Show Cause For Summary Judgment by Plaintiff
Alice Marino, with Supporting Papers and Exhibits
(dated April 11, 2013).................................................................1
Affirmation in Opposition by Defendants City of New York and
New York City Department of Environmental Protection, with
Supporting Papers and Exhibits
(dated May 17, 2013).................................................................2
Reply Affirmation by Plaintiff Alice Marino, with
Exhibits
(dated June 3, 1013)..................................................................3
_____________________________________________________________________________
Upon the foregoing papers, plaintiff's motion (No. 1235) for summary judgment is denied.
PLAINTIFF ALICE MARINO ( hereinafter "PLAINTIFF") brought this action to recover for injuries she claims to have sustained in an automobile accident where she was a passenger in a vehicle operated by defendant RICHARD MORALES ( hereinafter "MORALES"), when it was involved in a collision with a vehicle operated by defendant JOSEPH LENT (hereinafter "LENT") and owned by defendant EXTREME TOWING AND RECOVERY INCORPORATED ( hereinafter "EXTREME"). At the time of the accident, MORALES was a Deputy Director of the Fleet Service Division of the NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, and the car he was driving was owned by the CITY OF NEW YORK ( the DEPARTMENT OF ENVIRONMENTAL PROTECTION and the CITY OF NEW YORK are hereinafter referred to, collectively, as "THE CITY").
By motion dated April 21, 2010, PLAINTIFF moved to consolidate this matter with a second action brought against MORALES, EXTREME, and LENT [FN1] . In response, THE CITY cross-moved for summary judgment and dismissal of the complaint against it on the ground that MORALES' use of the vehicle was not in furtherance of his employment, and constituted an impermissible use. By Decision and Order of this Court, dated December 21, 2010, the cross motion was granted and the complaint dismissed as against THE CITY; the motion to consolidate was denied.
PLAINTIFF appealed, and the Appellate Division, Second Department, by Decision and Order dated May 1, 2012, reversed the grant of summary judgment, finding that while this Court properly determined that THE CITY could not be held liable for plaintiff's injuries under the theory of respondeat superior, separate questions of fact existed with reference to THE CITY'S alleged vicarious liability under Vehicle and Traffic Law § 388. Accordingly, THE CITY'S cross motion should have been denied (Marino v. City of New York, 95 AD3d 840 [2d Dept 2012]).
In now moving for summary judgment against THE CITY, PLAINTIFF argues that Vehicle and Traffic Law §388 creates a strong presumption that a vehicle is being operated with the consent of its owner, and that this concept is broader in scope than that of respondeat superior. Further, PLAINTIFF notes that because of his position with THE CITY, MORALES had been granted permission to take this vehicle home overnight and on weekends, and that this permission had not been revoked notwithstanding the discovery that MORALES had used its EZ Pass sticker on two occasions for purely personal reasons. On this basis, PLAINTIFF argues that (1) given the determination of the Appellate Division that THE CITY failed to overcome the strong presumption of permissive use embodied in Vehicle and Traffic Law § 388, and (2) THE CITY'S failure to adduce any "new" evidence pertinent to this issue in opposition to her motion, she is entitled to summary judgment on the issue of liability. In addition, PLAINTIFF contends that since MORALES, inter alia, struck the EXTREME tow truck in its rear, his negligence has been presumptively established.
In response, THE CITY argues as a preliminary matter that PLAINTIFF'S motion for summary judgment is untimely since the Note of Issue was filed on February 23, 2011, more than [*2]two years prior to the motion being made. Moreover, while the order of the Appellate Division reversing the grant of summary judgment was entered on July 27, 2012, the instant motion was not brought until April 11, 2013, nearly nine months thereafter. As to the merits of the motion, THE CITY claims that since the Appellate Division expressly determined that a question of fact existed with reference to its vicarious liability under Vehicle and Traffic Law§388, the entry of summary judgment in plaintiff's favor is unwarranted. Further, THE CITY notes that at the time this accident took place, MORALES was involved in an altercation with LENT, and was chasing him with the city vehicle. This, as well as transporting PLAINTIFF (who was not a municipal employee), is stated to be a clear violation of THE CITY'S prohibition against the use of its vehicles for personal reasons and, therefore, constituted an impermissible use. Moreover, THE CITY argues that the fact that it paid PLAINTIFF'S No-Fault benefits does not constitute a concession on permissive use, since the payment of those benefits was required under Insurance Law § 5101. Finally, it is claimed that no concession on permissive use can be inferred from THE CITY'S failure to revoke MORALES' use of the vehicle because of his prior EZ Pass infractions.
Pursuant to CPLR 3212 (a)[FN2], a motion for summary judgment must "made" no later than 120 days after the filing of the note of issue (see Group IX v. Next Print, 77 AD3d 530 [1st Dept 2010]). However, in this matter, the preliminary conference order dated November 1, 2005 states that "any dispositive motions ... shall be made within 60 days of the filing of the Note of Issue, unless the Court directs otherwise".In Brill v. City of New York (2 NY3d 648 [2004]), the Court of Appeals held that an untimely motion for summary judgment must be denied, despite the merits of the motion, unless "good cause" is provided to excuse the untimeliness of the motion. Thus, the finding of good cause required to excuse the late filing of a motion for summary judgment must be found without reference to the merits of the motion, based solely upon the proffer of a satisfactory explanation for the delay. In this regard, it is pertinent to note that the Court of Appeals had held four years earlier that where discovery was permitted to continue after the filing of the Note of Issue and the moving party acted promptly in applying for summary judgment after discovery was concluded,"good cause" existed to excuse non-compliance with the 120-day time limitation (Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124 [2000]; but see Bejarano v. City of New York, 18 AD3d 681, 682 [2d Dept 2005] [ Transit Authority's cross motion for leave to file a summary judgment motion approximately 10 months after the Note of Issue had been filed, based on its large caseload and lack of prejudice, denied]).
Plaintiff maintains in the Order to Show Cause underpinning this motion that it was timely interposed, since the matter had been removed from the trial calendar based on this Court's dismissal of the complaint, and she was contemporaneously moving to have the action restored to the [*3]calendar in a separate motion.[FN3] .
While the Note of Issue in this matter was filed on February 23, 2011, the action of this court in granting the defendant's motion for summary judgment effectively removed the case from the trial calendar. After the reversal by the Appellate Division, the plaintiff brought the instant motion within one month of the date the motion to restore was granted. Where a Note of Issue has been vacated, and the case removed from the trial calendar, a subsequent motion for summary judgment is not time-barred (Farrington v. Heidkamp, 26 AD3d 458 [2d Dept 2006]; Bono v. Barzallo, 260 AD2d 592 [2d Dept 1999]).
However, PLAINTIFF'S motion must nevertheless be denied.
The proponent of a motion for summary judgment must make a prima facie showing of her entitlement to judgment as a matter of law, advancing sufficient evidence to demonstrate the absence of any material issues of fact ( see Silverman v. Perlbinder, 307 AD2d 230 [1st Dept 2003]). Thus, the proponent of the motion carries the initial burden of both proof and persuasion (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]).
Here, the Appellate Division clearly held that "... the Supreme Court should not have granted the city's cross motion, since there are issues of fact regarding the plaintiff's separate theory of liability premised upon the city's alleged vicarious liability under Vehicle and Traffic Law § 388" (Marino v. City of New York, 95 AD3d at 841 [emphasis added]). This explicit finding is now the law of the case. Moreover, had the Appellate Division concluded otherwise, it had the undoubted authority to grant PLAINTIFF (albeit the non-moving party) summary judgment on the appeal ( see Merritt Hill Vineyards, Inc., v. Windy Heights Vineyard, 61 NY2d 106, 110-111 [1984]). It is not without significance that the Court declined to do so, noting instead that "the question of consent is ordinarily one for the jury" (Marino v. City of New York, 95 AD3d at 841).
Accordingly, it is
ORDERED that the motion for summary judgment (No. 1235—009 ) is denied.
ENTER
_/s/___________________________
Hon. Thomas P. Aliotta,
J.S.C.
Dated: August _2_, 2013
Footnotes
Footnote 1: These defendants have failed to appear in either action, and a default judgment has been entered against them in the second action under Index # 103749/2006
Footnote 2:Rule 3212, "Motion for summary judgment," provides:
"(a) Time; kind of action. Any party may move for summary judgment in any
action, after issue has been joined; provided however, that the court may set
a date after which no such motion may be made, such date being no earlier
than thirty days after the filing of the note of issue. If no such date is set by
the court, such motion shall be made no later than one hundred twenty days
after the filing of the note of issue, except with leave of court on good cause
shown" (emphasis added).
Footnote 3: In reality, the motion to restore had been granted in a short form order dated March 5, 2013, i.e., one month prior to the date of the Order To Show Cause
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