Thompson v Iannucci

[*1] Thompson v Iannucci 2015 NY Slip Op 51984(U) Decided on July 2, 2015 Supreme Court, Ulster County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 2, 2015
Supreme Court, Ulster County

Heather A. Thompson, as Administratrix of the Estate of Thelma A. Alderman, Deceased, Plaintiff,

against

Joseph E. Iannucci, Daphne Goode, and Carolyn Goode, Defendants.



15-0109



James W. Shuttleworth, III, Esq.

Counsel for Plaintiff

Finkelstein & Partners, LLP

1279 Route 300, PO Box 1111

Newburgh, New York 12551

Jason M. Bernheimer, Esq.

Counsel for Co-Defendant

Joseph E. Iannucci

Keane & Bernheimer, PLLC

40 Saw Mill River Road

Hawthorne, New York 10532

Maria Neal Soleimani, Esq.

Counsel for Co-Defendants, movant

Carolyn Goode and Daphne Goode

Alan B. Brill, P.C.

49 N. Airmont Road—Suite 100

Suffern, New York 10901
Lisa M. Fisher, J.

This is a motor vehicle accident case resulting in the death of Plaintiff-decedent Thelma A. Alderman (hereinafter "Plaintiff-decedent") on Route 32 in the Town of Plattekill, County of Ulster. On September 10, 2014 at approximately 10:36 A.M., Plaintiff-decedent was stopped on Route 32 in the southbound lane waiting to make a left turn when Defendant Joseph E. Iannucci (hereinafter "Defendant Iannucci") rear-ended her motor vehicle. This pushed Plaintiff-decedent's vehicle into the northbound lane where it was struck by the vehicle operated by [*2]Defendant Daphne Goode (hereinafter "Defendant Daphne") and owned by Defendant Carolyn Goode (hereinafter "Defendant Carolyn").

Defendants Daphne and Carolyn move pre-answer pursuant to CPLR R. 3211 (a) (7) for an Order dismissing the action against both of them on the grounds that Plaintiff has failed to state a cause of action. In support, Defendant Daphne submits an affidavit averring that "[a]ll I remember is a car suddenly entering my lane of travel. Thereafter there was an unavoidable collision with my vehicle." She concluded by stating "[m]y vehicle was in its proper lane of travel at all times. There was absolutely nothing I could do to avoid the happening of this incident and I was not at fault in any manner." The MV-104A police report also notes that there were two individuals in Defendant Daphne's vehicle; neither submitted an affidavit in support. For legal support, Defendant Daphne submits multiple cases establishing summary judgment in similar circumstances.

The motion is opposed by both Defendant Iannucci and Plaintiff. Defendant Iannucci argues that the standard for a motion to dismiss is if the pleading sufficiently states a cause of action from the four corners of the complaint, with the benefit of every possible favorable inference accorded to the plaintiff. Whereas Plaintiff argues that there is very limited evidence available at this point in the litigation to conclude whether Defendant Daphne exercised reasonable care as she drove through the intersection. Plaintiff claims Defendant Daphne's affidavit raises an issue of fact and negligence because she contended she did not see anything before the impact, but she has a duty to see what there is to be seen which includes an impact in the other lane. Plaintiff also maintains that Defendant Daphne has a duty to reduce speed or take evasive action when confronted with potential danger which also precludes summary judgment.

At the outset, it should be noted that Defendants Daphne and Carolyn's motion is procedurally deficient and must be denied without even turning to the opposition papers. They are attacking the sufficiency of the Complaint but have failed to attach it to their moving papers. (See CPLR R. 2214 [c] ["The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved."].) The fact that the opposition attached the Complaint does not satisfy the burden of the moving party, nor is the Court required to consider these papers. (See Loeb v Tanenbaum, 124 AD2d 941, 942 [3d Dept 1986] ["There is no authority compelling [the court] to consider papers which were not submitted in connection with the motion on which it is ruling; indeed, under CPLR 2214[c], the court may refuse to consider improperly submitted papers."] [citations omitted].)

Notwithstanding, even if the Court considers the balance of Defendants' Daphne and Carolyn's motion, they are still unsuccessful. Despite clearly moving pursuant to CPLR R. 3211 (a) (7), they support their position with a plethora of case law applying the standard for a summary judgment motion in every case. For a motion to dismiss for failure to state a cause of action pursuant to CPLR R. 3211 (a) (7), the court is to afford the complaint liberal construction (CPLR § 3026), "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Leon v Martinez, 84 NY2d 83, 87 [1994], citing Morone v Morone, 50 NY2d 481 [1980]; Rovello v Orofino Realty, 40 NY2d 633 [1976]; accord Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1185 [3d Dept 2015]; He v Realty USA, 121 AD3d 1336, 1339 [3d Dept 2014].) Therefore, "[i]f [the court] find[s] that the plaintiff is entitled to a recovery upon any reasonable view of the stated facts, [the court's] judicial inquiry is complete and [the court] must declare the plaintiff's complaint to be legally sufficient." (219 Broadway [*3]Corp. v Alexander's Inc., 46 NY2d 506, 509 [1979].)

Here, it is clear that Plaintiff's Complaint establishes a cause of action against both Defendants Daphne and Carolyn. The Complaint sufficiently alleges negligence as to both Defendants for use and operation of the motor vehicle involved in the accident due to their negligence (¶ 23), and establishes the Vehicle and Traffic § 388 permissive use claim against Defendant Carolyn (¶¶ 13—17). Defendants Daphne and Carolyn's motion is couched in terms arguing that Plaintiff cannot ultimately establish its allegations against them, which is simply not the standard in a motion to dismiss. (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11 [2005] ["Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss."]; accord Trask v Tremper Property Ass'n, Inc., 122 AD3d 1206, 1208 [3d Dept 2014].) Despite Defendants Daphne and Carolyn's claim otherwise, only co-Defendant Iannucci cites to the correct standard.

Although the Court did not assess the motion in the terms of a summary judgment motion, it should be noted that Plaintiff would likely have raised a fact given her arguments in opposition to this motion as referenced above and Defendant Daphne's affidavit.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Defendant Daphne Goode and Carolyn Goode's motion is DENIED, and all other relief requested therein is denied in its entirety.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

DATED: July 2, 2015

E N T E R :Catskill, New York

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

1. Notice of motion to dismiss, dated March 26, 2015; Affirmation in support of Maria Neal Soleimani, Esq, dated March 26, 2015; Affidavit in support of Daphne Goode, dated March 26, 2015l

2. Affirmation in opposition of Jason M. Bernheimer, Esq., with annexed exhibits, dated April 20, 2015;

3. Affirmation in opposition of James W. Shuttleworth, III, with annexed exhibit, dated April 28, 2015; and

4. Affirmation in reply of Maria Neal Soleimani, Esq., dated April 30, 2015; Affirmation in Reply of Maria Neal Soleimani, Esq., dated May 4, 2015.