Dombalic v Cornelius

[*1] Dombalic v Cornelius 2023 NY Slip Op 23030 Decided on February 3, 2023 Supreme Court, Richmond County Castorina, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 3, 2023
Supreme Court, Richmond County

Bajram Dombalic and Samuel Garcia, Plaintiffs,

against

James Cornelius and Yevgeni Kaniayev, Defendants.



Index No.: 151145/2021



Counsel for Plaintiffs:

Dominic Diprisco, Esq.

DECOLATOR, COHEN & DIPRISCO, LLP

1399 Franklin Ave Ste 300

Garden City, NY 11530

Phone: (516) 742-6575

Counsel for the Defendant J" target="_blank">Laffey Fine Homes of New York, LLC v 7 Cowpath, LLC, 210 AD3d 974 [2d Dept 2022] citing: Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Furthermore, all the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]).

In this matter Defendant KANIAYEV submits the following in support of their motion, to wit: [1] Defendant KANIAYEV's Answer denying Defendant CORNELIUS had permission to operate his vehicle, [2] Defendant KANIAYEV's sworn affidavit acknowledging that on the date of the accident (June 11, 2020) he was the owner of the vehicle operated by CORNELIUS, and that the vehicle was stolen by Defendant CORNELIUS having been operated and involved in the accident without permission of Defendant KANIAYEV, [3] a copy of a complaint filed with the NYPD upon learning that his vehicle was stolen, and [4] a certified copy of the amended police report of the June 11, 2020 accident indicating that Defendant CORNELIUS was arrested for [*4]violating PL §155.30 [8] "Grand Larceny of a motor vehicle."[FN2]

VTL §388 [1] provides that the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle, and it is presumed, that a vehicle is being operated with the owner's consent and permission. However, "[e]vidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use" (Fuentes v Virgil, 119 AD3d 522, 523 [2d Dept 2014]). Defendant KANIAYEV argues that the evidence propounded in support of the within motion, suffices to rebut the VTL's presumption of permissive use, and they cite two relevant cases in support of that proposition. The first case cited is Vyrtle Trucking Corp v Browne, (93 AD3d 716 [2d Dept 2012]) in which the Second Department reversed the trial court's denial of Defendant's motion for summary judgment, where there was evidence that the Defendant's vehicle had been stolen prior to the accident with the Plaintiff's vehicle. This case is distinguishable from the instant matter because the driver in Vyrtle was unknown, as they fled from the scene on foot, never apprehended, and therefore not prosecuted. It was clear to the Vyrtle court, based upon the documentary evidence, that the vehicle was in fact stolen. No further information or adjudication was produced or had on the issue. Therefore, the presumption of permissive use under the VTL was handily rebutted by Defendant. Here, the identity and whereabouts of the driver were indeed ascertained. The Defendant remained at the scene, injured, and was later treated for his injuries at Bellevue Hospital. Subsequently and within one day of the accident, the Defendant CORNELIUS was arrested on charges including but not limited to "Felony count of Criminal Possession of Stolen Property in the Third Degree" (PL §165.50) and VTL §426 "Punishment for Making False Statement; Stolen Vehicles."

Defendant movant references a First Department case decided in New York County Supreme Court entitled Khor v Caesar (2019 WL5963203 Sup Ct NY County), wherein Defendant Caesar introduced sufficient evidence to rebut the presumption that Defendant Joseph was using the Toyota with Caesar's permission. Specifically, Caesar submitted an Affidavit wherein he stated that the Toyota was stolen from Jean Pearson, and that he did not know the driver of the Toyota or give him permission to use the Toyota when the accident occurred. Additionally, Caesar attached a Stolen Vehicle Report and a Police Accident Report, both of which state that the Toyota was stolen before the accident. Plaintiff argued culpability on the part of Pearson, for inadvertently facilitating the theft of the vehicle by leaving the vehicle unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon. Without any additional information, the court deemed the presumption of permissive use rebutted by the evidence presented. In the instant case, there are facts that go beyond the snapshot in time of the accident, albeit discovered inadvertently by the court, thereby distinguishing the case, and raising a unique issue of fact which will be discussed at length in section B below entitled Judicially Noticed Dispositive Facts.

Plaintiff argues that Defendant KANIAYEV's motion should be denied for the following [*5]five [5] reasons, to wit: [1] the motion is premature as no discovery has been held, [2] negligence cases do not usually lend themselves to summary judgment, [3] the complaint report shows that the vehicle was reported stolen after the date of the incident on June 12, 2020, one day after the incident, [4] that the Defendant has failed to rebut the presumption of permissive use under the VTL, and [5] that the police report is inadmissible hearsay.

At the outset, Plaintiff's argument as to the issue presented under the VTL, that "negligence cases do not usually lend themselves to summary judgment" is a red herring. Although there once were significant limitations upon the type of action in which summary judgment was available (see Siegel, New York Practice, §280), this is no longer true (see CPLR §3212). Indeed, as of January 1, 1979, the final prohibition was removed, and it is now possible for a plaintiff to obtain summary judgment even in a matrimonial action (L.1978, ch. 532). That summary judgment is an available remedy in an appropriate negligence case has been accepted since 1959 (see 4 Weinstein-Korn-Miller, NY Civ Prac , par. 3212.03). Summary judgment has been termed a drastic measure, however, since it deprives a party of his day in court and will normally have res judicata effects (see Siegel, New York Practice, § 287). Thus, it may be granted without a trial only if no genuine, triable issue of fact is presented (Byrd v Hughes, 188 AD3d 975 [2d Dept 2020]; CPLR §3212, subds. (b), (c)). Although Plaintiff is correct that negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties agree as to the underlying facts, the very question of negligence is itself a question for jury determination. Here, the issue is not one of negligence, but as to whether the evidence presented on the motion is sufficient to rebut the presumption of permissive use of the KANIAYEV motor vehicle, thus relieving them of liability in this action.

Plaintiff's argument that [1]"the motion should fail as premature," [2] that the vehicle was reported stolen one day after the accident, [3] that the Defendant failed to rebut the presumption of permissive use, and [4] that the police report is inadmissible hearsay, would all have failed in the absence of the documentary evidence inadvertently obtained by this court regarding the disposition of Defendant CORNELIUS's criminal case. In fact, the Defendant's reliance upon Khor v Caesar (2019 WL5963203 Sup Ct NY County) would likely have been justified. Moreover, typically the argument that 'the Defendant's motion is premature' would be without merit, as the Second Department has repeatedly maintained that the mere hope or speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion as premature (Leak v Hybrid Cars, Ltd, 132 AD3d 958, 959 [2d Dept 2015]; Skura v Wojtlowski, 165 AD3d 1196 [2d Dept 2018]). However, there are additional facts not originally contemplated by the parties, inadvertently discovered by the court, and presented to the parties at oral argument, providing them notice, and an opportunity to be heard. No applications were made for additional submissions, nor were any oral motions made by the parties at that time. The facts and the circumstances surrounding the discovery of (extrinsic, however referenced and related) facts are novel and are provided for in the following section of this Memorandum Decision and Order entitled Judicially Noticed Dispositive Facts.

B. Judicially Noticed Dispositive Facts

Judicial notice taken, sua sponte is frowned upon in our courts, particularly upon the conclusion of fact finding hearings, as doing so deprives the litigants of opportunity to challenge the accuracy and/or the relevancy of the judicially noticed facts (Billets v Bush, 63 AD3d 1203, 1204 [3d Dept 2009] (error to take sua sponte judicial notice of prior orders after conclusion of fact-finding hearing); In re Dakota CC, 78 AD3d 1430, 1431, [3rd Dept 2010] (error to take [*6]judicial notice without affording party opportunity to challenge accuracy or relevancy "nor should the court have included allegations in the fact-finding decision that were not established during the hearing"); Matter of Justin EE., 153 AD2d 772, 774 [3rd Dept 1989], lv. Denied (sua sponte judicial notice, taken after the conclusion of fact-finding hearing, "was inappropriate in that respondents had no opportunity to challenge either the accuracy or relevance of the judicially noticed facts.")). The Second Department has long held that sua sponte judicial notice of the applicability of a statute of limitations is reversible error if that defense has not been raised" (352 Legion Funding Assoc v 348 Riverdale, LLC, 164 AD3d 551, 552-53 [2d Dept 2018]).

The instant matter is quite distinguishable from the aforementioned cases. Firstly, the sua sponte judicial notice taken by courts in the referenced cases, were made after fact-finding hearings were concluded, and there was a deprivation of due process as to the judicially noticed facts. The instant matter was before the court on a CPLR §3212 motion for summary judgment, and during oral argument, the court raised the judicially noticed issue(s) to counsel on the record in open court, affording them the opportunity to address the relevancy, and/or the veracity of the judicially noticed Felony Complaint and Criminal Disposition Report, and to make whatever applications they may have chosen to make. A motion for summary judgment may be analogized to a motion for directed verdict during trial. The issue before the court is whether, on the evidence presented, a reasonable fact finder could find one way or the other.

This court routinely prepares for oral argument on motions, by reading all the papers, checking the citations of the parties, and by formulating questions for the parties on the facts and the law. Oral argument provides the parties with a chance to further explain their arguments, clarify points made in their papers, and provides an opportunity to pique the court's intellectual curiosity by engaging in meaningful discussion of the facts, and the law, whether ordinary, complex, or novel. Oral argument also assuages the court's concerns, and demonstrates the soundness of one's position, by clarifying issues, as well as factual and legal points. Consequently, this court takes the process very seriously, and conscientiously prepares for same.

This court did not go on a wild goose chase, or fishing expedition to find an issue of fact outside of the parties' papers. The role of a Justice is to be a neutral arbiter, impartial and independent, swayed by neither personal predispositions, nor external pressure. It is certainly not the role of a Justice to advocate in behalf of a party, and this court is very careful to detail its process to ensure that the parties' perception of the court's role, and its actions taken herein, are indeed just and proper. The sua sponte judicial notice taken in this matter is based upon discovery of facts incident to a related prosecution, that was referenced in the motion papers by Plaintiffs and Defendant movant. The facts as to the court's discovery of the judicially noticed and consequential facts to this motion are as follows: [I]n reviewing the file for oral argument, the court took notice that Defendant, CORNELIUS had not answered the Summons and Complaint, and that the court file was devoid of either an Affidavit of Service or an Affidavit of Attempted Service. Defendant KANIAYEV's motion papers reference the arrest and prosecution of CORNELIUS in New York County Criminal Court. In anticipation of a default, the court postulated that CORNELIUS might be incarcerated as a result of the arrest and prosecution stemming from the facts in this case. If [*7]CORNELIUS was incarcerated, it would have served as an explanation for either the failure to serve process, and/or a reason why CORNELIUS, if served, had not yet answered the Summons and Complaint.

One of the recent tools supplied to judges and justices by the New York State Office of Court Administration is called "New York Bench." This computer program has many functions, but most relevant to the instant case, is the ability of the court to look up a case status, and or to view Criminal Court documents, including the Felony Complaint and Criminal Disposition Report in CORNELIUS' matter. It is simple for any jurist with access, to procure the referenced information on "New York Bench" with the stroke of a few keys. The Court identified a Defendant having the same name, age, description, address, arrest date, NYPD Precinct, as detailed by Defendant KANIAYEV's moving papers. The court obtained a copy of the Felony Complaint revealing the same facts, allegations and charges contained in the instant motion papers. The documents show that Defendant CORNELIUS was charged with PL §165.50 "Criminal Possession of Stolen Property in the Third Degree," VTL §426 "Punishment for Making False Statement; Stolen Vehicles," as well as other assorted vehicle and traffic law charges, that are not relevant to the VTL §388 issue of presumptive permissive use of a motor vehicle.

Consequential to this courts decision on the within motion is information found on the Criminal Disposition Report, to wit: the "charge disposition" relating to the charges of PL §165.50 "Criminal Possession of Stolen Property in the Third Degree," and VTL §426 "Punishment for Making False Statement; Stolen Vehicles." The disposition as to those charges indicate that they were "Dismissed (Motion to Dismiss Granted)", and that they are to be sealed pursuant to PL §160.50 which provides for the sealing of a charge upon the full and final disposition of the case. There can be no dispute that the value of a full and final adjudication on the merits (on a motion to dismiss), has greater evidentiary value than a police report, and therefore the court deemed this information to be consequential and worthy of judicial notice.

Upon the incidental discovery of this consequential information, the court provided the information to both appearing counsel on the record during oral argument, providing the parties with an opportunity to address the relevancy, veracity, and/or application of the judicially noticed facts on Defendant's CPLR §3212 motion that was before the court. Counsel participated in a spirited discussion on the facts and the law, including the judicially noticed information, and the court reserved decision on the motion.

This court is quite sensitive to the notion that it should not take judicial notice of any court-generated document without affording the parties an opportunity to be heard on whether notice should be taken, and, if so, the significance of its content" (see Caffrey v North Arrow Abstract & Settlement Servs, Inc, 160 AD3d 121 [2d Dept 2018] [emphasis added]). This court had in mind at the time of oral argument Justice Dillon's axiomatic and cautionary explanation, to wit: "The obvious reason for Caffrey's perspicacious caution in taking judicial notice is the basic notion of due process that is owed to parties." Therefore, the court spread forth the information on the record, and engaged counsel with discussion on the record. But for Defendant KANIAYEV's necessary reference to the arrest, and prosecution of CORNELIUS, coupled with Plaintiffs' failure to file an affidavit regarding [*8]either the service of process or attempted service of process upon CORNELIUS; this court would not have discovered the crucial information as to the disposition of relevant criminal charges.

Upon discovery, the court could not, in the interests of justice, feign ignorance as to these indelible facts. A bell once rung, cannot be un-rung. Defendant KANIAYEV's submission of an affidavit under oath that their vehicle was stolen, along with certified police and accident reports, show that Defendant CORNELIUS was arrested. This information does lend some credence to their allegation that the vehicle was stolen prior to the accident. Ordinarily, this would be enough for a Defendant to rebut the presumption of permissive use. However, this court's incidental discovery of the dismissal of all relevant charges KANIAYEV relies upon to rebut the presumption of permissive use, raises an issue of fact, worthy, at the very least, of discovery.

IV. Conclusion

Consequently, Defendant KANIAYEV's motion for summary judgment is DENIED without prejudice to renew upon the completion of discovery.

V. Decretal Paragraphs

It is hereby ORDERED, that Defendant KANIAYEV's motion seeking an Order granting summary judgment to Defendant YEVGENI KANIAYEV, pursuant to CPLR §3212, and for such other and further relief as the court deems just and proper, is DENIED without prejudice to renew upon the completion of discovery, and it is further,

ORDERED, that the clerk of the court shall enter judgment accordingly.

Any relief requested and not expressly addressed by the court is DENIED.

This shall constitute the Decision and Order of the court.

Dated: February 3, 2023

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1:Plaintiff SAMUEL GARCIA is a resident of the County of The Bronx in the City and State of New York.

Footnote 2:The Felony Complaint does not include PL§ 155.30 [08]. The relevant charge as to the instant motion is PL § 165.50 "Criminal Possession of Stolen Property in the Third Degree" and VTL §426 "Punishment for Making False Statement; Stolen Vehicles." The Defendant was also charged with violating VTL §§ 1192 [3], 1212, and 1192 [1], which do not relate to the rebuttable presumption as to permissive use of the vehicle.