Vaccaro v Francolopez

Annotate this Case

Download PDF

Vaccaro v Francolopez 2018 NY Slip Op 30656(U) April 10, 2018 Supreme Court, New York County Docket Number: 158982/17 Judge: Adam Silvera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 04/13/2018 09:53 AM 1] NYSCEF DOC. NO. 39 INDEX NO. 158982/2017 RECEIVED NYSCEF: 04/13/2018 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Adam Silvera Part 22 ANTHONY VACCARO, DECISION/ORDER Plaintiff, INDEX NO. 158982/17 MOT. SEQ. NO. 001 -againstOMARLIN FRANCOLOPEZ, RYDER TRUCK RENTAL INC., ANHEUSER BUSCH d/b/a BUDWEISER and D. BERTOLINE & SONS INC. Defendants. ADAM SILVERA, J.: BACKGROUND In October 2017, plaintiff commenced this action against defendants to recover monetary damages for injuries allegedly sustained in a motor vehicle accident on July 25, 2017. All defendants filed an answer. Defendant Anheuser Busch (hereinafter referred to as "Budweiser") now moves to dismiss plaintiffs complaint pursuant to CPLR §321 l(a)(l) and (a)(7), or for a change of venue. Plaintiff cross-moves to retain venue in New York County for the convenience of his witness pursuant to CPLR 510(3). Budweiser opposes the cross-motion and plaintiff replies. Defendants D. Bertoline & Sons Inc., Omarlin Francolopez, and Ryder Truck Rental, Inc. have not opposed the motion or crossmotion. DISCUSSION Budweiser's Motion to Dismiss Budweiser moves to dismiss this action pursuant to CPLR §321 l(a)(l) and (a)(7), arguing that, based on the documentary evidence, Budweiser was not involved in the motor vehicle accident and 1 2 of 6 [*FILED: NEW YORK COUNTY CLERK 04/13/2018 09:53 AM 2] NYSCEF DOC. NO. 39 INDEX NO. 158982/2017 RECEIVED NYSCEF: 04/13/2018 should not be a defendant herein. Budweiser further argues that plaintiff failed to state a cause of action. On a motion to dismiss pursuant to CPLR 321 l(a)(7), the movant has the burden to demonstrate that, based upon the four comers of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action. Leon v Martinez, 84 NY2d 83, 87-88 (1994). A motion to dismiss the complaint for failure to state a cause of action "will generally depend upon whether or not there was substantial compliance with CPLR 3013." Catli v Lindenman, 40 AD2d 714, 715 (2d Dep 't 1972). If the allegations are not "sufficiently particular to give the court and parties notice of the transactions intended to be proved and the material element of each cause of action", the cause of action will be dismissed. See Catli, 40 AD2d at 715. CPLR 3013 provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." In determining whether to grant a motion to dismiss, the court accepts the facts alleged in a complaint as true, and determines whether the facts as alleged fit within any cognizable theory oflaw. See Morone v Marone, 50 NY2d 481, 484 (1980); Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977). Additionally, all such facts must be accorded every favorable inference. Beattie v Brown & Wood, 243 AD2d 395, 395 (1st Dep't 1997). Preliminarily, the Court notes that the Verified Complaint alleges, inter alia, that Budweiser is the registered owner, or lessee or lessor, of the motor vehicle involved in the motor vehicle accident on July 25, 2017. The complaint further alleges that Budweiser operated or controlled such motor vehicle at the time of the subject accident, and did so negligently, recklessly, and carelessly thus causing plaintiffs injuries. Taking the allegations in the complaint as true and affording every favorable inference, Budweiser has failed to establish that plaintiff failed to state a cause of action against it. As such, Budweiser's motion to dismiss pursuant to CPLR 321 l(a)(7) is denied. 2 3 of 6 [*FILED: NEW YORK COUNTY CLERK 04/13/2018 09:53 AM 3] NYSCEF DOC. NO. 39 INDEX NO. 158982/2017 RECEIVED NYSCEF: 04/13/2018 As to Budweiser's argument that this action must be dismissed based upon the documentary evidence, such argument also fails. On a motion to dismiss pursuant to CPLR 321 l(a)(l ), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter oflaw". Leon v Martinez, 84 NY2d 83, 88 (1994). Movant "has the burden of showing that the relied-upon documentary evidence resolves all factual issues as a matter oflaw, and conclusively disposes of the plaintiffs claim". Fortis Fin. Servs., LLC v Fimat Futures USA, Inc., 290 AD2d 383, 383 (1st Dep't 2002)(intemal quotations omitted). Here, Budweiser relies on the Verified Answer with Cross-Claims of defendant Ryder Truck Rental, Inc. in which it admits that it owned and leased the subject vehicle, and the Verified Answer of defendants Omarlin Francolopez and D. Bertoline & Sons, Inc. in which they admit to operating the subject vehicle. A quick review of defendant Ryder Truck Rental, Inc's Verified Answer with Cross-Claims reveals that such defendant admits that it is the registered owner of the motor vehicle in question herein, and further admits that it leased such motor vehicle to Budweiser. See Summons and Complaint, if 11 and Verified Answer with Cross-Claims, if3. Thus, the documentary evidence relied upon by Budweiser does not conclusively dispose of plaintiffs claim against it. Budweiser's motion to dismiss is denied. Budweiser's Motion to Change Venue to Westchester County Budweiser also moves to change venue to Westchester County, arguing that venue is improper as none of the parties resided in New York County when the action was commenced. Budweiser designates Westchester County, where plaintiff resides and where the motor vehicle accident occurred. In opposition, plaintiff argues, inter alia, that Budweiser failed to proffer a demand to change venue. However, in its reply, Budweiser proffers such demand which was timely made pursuant to CPLR §511. Plaintiffs other arguments regarding venue are without merit. Here, Budweiser has established that its principal place of business is in Missouri, and through the State of New York Department of State, 3 4 of 6 [*FILED: NEW YORK COUNTY CLERK 04/13/2018 09:53 AM 4] NYSCEF DOC. NO. 39 INDEX NO. 158982/2017 RECEIVED NYSCEF: 04/13/2018 Budweiser obtained a principal office in New York State in Onondaga County. It is undisputed that plaintiff resides in Westchester County, and that the co-defendants do not reside in New York County. Thus, Budweiser has established that plaintiff improperly designated New York County as the venue for this action and its motion is granted. Plaintiffs Cross-Motion to Retain Jurisdiction in New York County Plaintiff cross-moves to retain venue in New York County pursuant to CPLR §510(3) arguing that this Court should retain jurisdiction for the convenience of his doctor, who will be called as a witness at trial. CPLR §510(3) states that "[t]he court, upon motion, may change the place of trial of an action where: ... (3) the convenience of material witnesses and the ends of justice will be promoted by the change." Here, plaintiff argues that his treating anesthesiologist/pain specialist practices medicine in New York County, and that it would be more convenient for him to appear and offer testimony at trial in New York County. It has consistently been held that "all things being equal, a transitory action should be tried in the county in which the cause of action arose", here Westchester County. McGuire v General Electric Co., 117 AD2d 523, 523-524 (1st Dep't 1986). The Court notes tha+ "[t]he language 'other things being equal' refers to the number of witnesses residing in counties opted for by the litigants." Seabrook v Good Samaritan Hosp., 395 NYS2d 208, 209 (1st Dep't 1977). Here, plaintiff alleges that he will call his doctor as a witness, and that such doctor practices medicine in New York County. However, plaintiff himself will be a witness and he resides in Westchester County where the accident occurred. As such, the number of witnesses residing in the counties opted for by plaintiff and by Budweiser are equal. Plaintiff has failed to establish that retaining venue in New York County, pursuant to CPLR §510(3) will promote the ends of justice, and, thus, plaintiffs cross-motion is denied. Accordingly, it is 4 5 of 6 [*FILED: NEW YORK COUNTY CLERK 04/13/2018 09:53 AM 5] NYSCEF DOC. NO. 39 INDEX NO. 158982/2017 RECEIVED NYSCEF: 04/13/2018 ORDERED that defendant Anheuser Busch's motion to dismiss is denied; and it is further ORDRED that defendant Anheuser Busch's motion to change venue to Westchester County is granted; and it is further ORDERED that the venue of this action is changed from this Court to the Supreme Court, County of Westchester, and upon service by movant of a copy of this order with notice of entry and payment of appropriate fees, if any, the Clerk of this Court is directed to transfer the papers on file in this action to the Clerk of the Supreme Court, County of Westchester; and it is further ORDERED that plaintiffs motion to retain venue in New York County is denied; and it is further ORDERED that within 30 days of entry, defendant Anheuser Busch shall serve a copy of this decision/order upon all parties with notice of entry. This constitutes the decision/order of the Court. Dated: April 10, 2018 ENTER: Hon. Adam Silvera, J.S.C. 5 6 of 6

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.