Holguin v Sabir

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Holguin v Sabir 2019 NY Slip Op 30226(U) January 28, 2019 Supreme Court, New York County Docket Number: 162466/2014 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: 1] NEW YORK COUNTY CLERK 01/30/2019 11:27 AM NYSCEF DOC. NO. 139 INDEX NO. 162466/2014 RECEIVED NYSCEF: 01/30/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART IAS MOTION 22 -----------------------------------------------------------------------------------X JOSE HOLGUIN, INDEX NO. 162466/2014 Plaintiff, MOTION DATE 12/04/2018 -vSHIVA SABIR, LIBERTY MECHANICAL CONTRACTORS LLC,MCG CONSTRUCTION LLC,HUTCH TWO TOWER LLC,D & D ELECTRICAL CONSTRUCTION COMPANY, INC., 004 MOTION SEQ. NO. DECISION AND ORDER Defendant. -----------------------------------------------------------------------------------x HON. ADAM SILVERA: The following e-filed documents, listed by NYSCEF document number (Motion 004) 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 122 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER Upon the foregoing documents, it is ORDERED that defendant D&D Electrical Construction Company, Inc.'s (hereinafter "Defendant") motion for summary judgment, for an order pursuant to CPLR 3212 to dismiss plaintiff Jose Holguin's complaint and all cross claims against Defendant since plaintiff fails to meet its burden of proof that Defendant was negligent is granted. The present motion stems from a motor vehicle accident which occurred on May 10, 2013 at 1200 Waters Place in the County of Bronx, City and State of New York, when codefendant Shiva Sabir was operating a forklift and pulled out of the entrance of a construction site and made contact with the middle of the passenger side of plaintiffs vehicle. Plaintiff does not oppose the motion. Page 1of4 162466/2014 HOLGUIN, JOSE vs. SABIR, SHIVA J Motion No. 004 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 01/30/2019 11:27 AM NYSCEF DOC. NO. 139 INDEX NO. 162466/2014 RECEIVED NYSCEF: 01/30/2019 Summary Judgment "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Discussion Defendant affirms that it is not liable for defendant driver as it did not employ, control, direct and/or supervise defendant driver on the date of the accident and did not own, rent or provide the forklift in question. Further, Defendant states that it did not have any obligation with regard to the construction site where the accident occurred as it was hired by codefendant MCG to work at another site located at 1250 Water Place. In support of its motion, Defendant submits a copy of a contract between co-defendant MCG Construction and Defendant which highlights that Defendant was hired for work to be performed at 1250 Water Place and not 1200 Water Place where the accident at issue occurred (Mot, Exh L). Defendant also submits the depositions of plaintiff, defendant driver Shiva Sabir, Bernard Brender on behalf of defendant Liberty Mechanical Contractors LLC, Paul Meshonek on behalf of Defendant MCG Construction LLC & Hutch Two Tower LLC and of James J. Zervas on behalf of Defendant (Mot, Exh E, F, G, H, I & J). Upon examination of these records the Court finds that Defendant was not present at the construction site of issue, did not employ, direct, nor defendant driver, and had no connection to the motor vehicles at issue. Page 2 of 4 162466/2014 HOLGUIN, JOSE vs. SABIR, SHIVA J Motion No. 004 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 01/30/2019 11:27 AM NYSCEF DOC. NO. 139 INDEX NO. 162466/2014 RECEIVED NYSCEF: 01/30/2019 Conclusion Defendant has made out a prima facie demonstration that they are not liable for the accident at issue, and the burden shifts to plaintiff to raise a triable issue of fact (See Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; see also Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Plaintiff has not submitted opposition to the motion. Thus, Defendant's motion to dismiss plaintiffs complaint as against D&D Electrical Construction, Inc. is granted. Accordingly, it is ORDERED Defendant's motion that for an order pursuant to CPLR 3212 to dismiss plaintiff Jose Holguin' s complaint and all cross claims against Defendant is granted; and it is further ORDERED that the complaint is dismissed in its entirety as against Defendant D&D Electrical Construction Company, Inc., with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for Defendant D&D Electrical Construction Company, Inc. serve a copy of this order with notice of entry upon the County Clerk (Room 141 B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records to reflect the change in the caption herein; and it is further 162466/2014 HOLGUIN, JOSE vs. SABIR, SHIVA J Motion No. 004 Page 3 of 4 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 01/30/2019 11:27 AM NYSCEF DOC. NO. 139 INDEX NO. 162466/2014 RECEIVED NYSCEF: 01/30/2019 ORDERED that within 20 days of entry, counsel for Defendant D&D Electrical Construction Company, Inc. shall serve a copy of this Decision/Order upon all parties with notice of entry. This constitutes the Decision/Order of the Court. 1/28/2019 ADAM SILVERA, J.S.C. DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D OTHER D REFERENCE Page 4 of 4 162466/2014 HOLGUIN, JOSE vs. SABIR, SHIVA J Motion No. 004 4 of 4

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