Quiles-Martinez v Biella

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Quiles-Martinez v Biella 2018 NY Slip Op 33883(U) January 2, 2018 Supreme Court, Orange County Docket Number: EF007812-2017 Judge: Catherine M. Bartlett 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: 1] ORANGE COUNTY CLERK 01/02/2018 10:04 AM INDEX NO. EF007812-2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/02/2018 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. CATHERINE M. BARTLETT, A.J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE --------------------------------------------------------------------x NANETTE QUILES-MARTINEZ, To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this .order, with notice of entry, upon all parties. Plaintiff, -againstMARIA BJELLA, JEFFREY E. BARTFELD and LOUIS F. HALL, Index No. EF007812-2017 Defendants. Motion Date: December 22, 2017 ---------------------------------------------------------------------x The following papers numbered 1to5 were read on defendant Maria Biella's motion to dismiss Plaintiffs claim for property damage: Notice of Motion - Affirmation I Exhibits ......................................... 1-2 Affirmation in Opposition I Exhibits - Affidavit .................................... 3-4 Reply Affirmation ............................................................. 5 Upon the foregoing papers it is ORDERED that the matter is disposed of as follows: This is an action wherein plaintiff Nanette Quiles-Martinez seeks to recover for personal injury and property damage arising out of a motor vehicle accident tha{ occurred on January 18, 2015 in the Town of Clarkstown, New York. The Complaint, bearing Ms. Quiles-Martinez' sworn verification, alleges inter alia: I Filed in Orange County 01/02/2018 10:04:23 AM $0.00 1 4 Bk:of 5126 Pg: 1338 Index:# EF007812-2017 Clerk: DK [*FILED: 2] ORANGE COUNTY CLERK 01/02/2018 10:04 AM NYSCEF DOC. NO. 24 INDEX NO. EF007812-2017 RECEIVED NYSCEF: 01/02/2018 14. That at all times hereinafter mentioned, the plaintiff was the operator of a 2010 Cadillac motor vehicle, bearing License Plate #GNFl 090, owned by one Roberto Quiles-Martinez. who is not a party hereto. 15. That at all times hereinafter mentioned, this plaintiff operated the aforementioned 2010 Cadillac motor vehicle with the express and/or implied pennission, consent and knowledge of the aforesaid owner. Each of these allegations is, in Paragraph "24" of the Complaint, repeated, reiterated and realleged in Ms. Quiles-Martinez' cause of action for property damage, wherein she alleges that as a result of Defendants' negligence she "sustained property damage to her motor vehicle." Defendant moves pursuant to CPLR §321 l(a)(3) to dismiss Plaintiffs cause of action for property damage to the vehicle on the ground that she is not the owner of the vehicle. CPLR §321 l(a)(3) provides that "a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the party asserting the cause of action has not legal capacity to sue." Capacity and standing are "related, but distinguishable, legal concepts," each of which may be challenged on a motion to dismiss under Section 321 l(a)(3). See, Wells Fargo Bank Minnesota, Nat. Ass'n v Mastropaol~, 42 AD3d 239, 242-243 (2d Dept 2007). At issue here is Plaintiff's standing, which requires an inquiry into whether the litigant has "an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request." Id. (quoting Caprer v. Nussbaum, 36 AD3d 176, 182). Plaintiff does not deny that a claim for property damage to a vehicle damaged in an accident must be brought by the "owner" of the vehicle. In opposition to Defendant's motion, she has submitted an affidavit stating that Roberto Quiles-Martinez (the non-party referenced in Paragraph "14" of the Verified Complaint) is her husband, and that he purchased the vehicle in question for her as a gift. Roberto Quiles-Martinez, the registered owner of the vehicle, has 2 2 of 4 [*FILED: 3] ORANGE COUNTY CLERK 01/02/2018 10:04 AM NYSCEF DOC. NO. 24 INDEX NO. EF007812-2017 RECEIVED NYSCEF: 01/02/2018 himself submitted no affidavit. Moreover, Plaintiff has not proffered the vehicle's Certificate of Title, which would constitute prima facie evidence of its ownership. See, VTL §2108(c). Plaintiff's unsubstantiated affidavit flies in the face of her sworn allegations in the Verified Complaint, which are formal judicial admissions and conclusive of the facts thereby admitted. See, Zegarowicz v. Ripatti, 77 AD3d 650 (2d Dept. 2010). As the Second Department therein held: Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v. 81 & 3 of Watertown, 288 AD2d 890, 891...; Prince, Richardson on Evidence §8-215, at 523-524 [Farrell I Ith ed.]). Formaljudicial admissions are conclusive of the facts admitted in the action in which they are made (see Coffin v. Grand Rapids Hydraulic Co., 136 NY 655 ... ). Zegcirowicz, supra, 17 AD3d at 653. Plaintiff explicitly admitted not only that the vehicle was owned by Roberto Quiles-Martinez, but also that she was operating it with his permission (Verified Complaint ~~ 14-15), which is utterly irreconcilable with her belated assertion of ownership. Plaintiff's vague reference to "her" vehicle in the cause of action for property damage cannot be deemed an allegation of ownership, because Plaintiff in that cause of action explicitly repeated, reiterated and realleged that Roberto Quiles-Martinez owned the vehicle and that she was operating it with his permission (Complaint if24). The court therefore concludes that Plaintiff's affidavit in opposition to Defendant's motion is insufficient as a matter of law to overcome the sworn formal judicial admissions of Roberto Quiles-Martinez's ownership of the vehicle in question. Consequently, Plaintiff's cause of action for property damage to that vehicle must be dismissed for lack of standing. 3 3 of 4 [*FILED: 4] ORANGE COUNTY CLERK 01/02/2018 10:04 AM INDEX NO. EF007812-2017 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/02/2018 It is therefore ORDERED, that Defendant Maria Biella's motion to dismiss is granted, and the Second Cause of Action in Plaintiff's Verified Complaint is hereby dismissed. The forezonstitutes the decision and order of this court Dated: January , 2018 Goshen, New York ENTER ) . ~w HON. CATHERINE M. BARTLETT, A.J.S.C. HON. C. M. BARTI.ETT JUDGE NY STATE COURT OF CLAIMS ACTINGSUPREMECOURTJUSTICE 4 4 of 4

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