Aretakis v. Avis

2024 NY Slip Op 31989(U)
CourtNew York Supreme Court, Kings County
DecidedJune 10, 2024
StatusUnpublished

This text of 2024 NY Slip Op 31989(U) (Aretakis v. Avis) is published on Counsel Stack Legal Research, covering New York Supreme Court, Kings County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aretakis v. Avis, 2024 NY Slip Op 31989(U) (N.Y. Super. Ct. 2024).

Opinion

Aretakis v Avis 2024 NY Slip Op 31989(U) June 10, 2024 Supreme Court, Kings County Docket Number: Index No. 483/2023 Judge: Francois A. Rivera 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: KINGS COUNTY CLERK 06/10/2024 04:31 PM INDEX NO. 483/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/10/2024

At an IAS Tem1, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 10th day of June 2024

HONORABLE FRANCOIS A. RIVERA -·----. ------------------------------------------------------------X JOH_N ARETAKIS, DECISION .& ORDER .

Plaintiff, Index No.: 483/2023 - against -

AVIS, A VIS CAR RENTAL, THE AVIS CORPORATION, AVIS GLOBAL HOLDING INC., RENTAL CAR INTERMEDIATE HOLDINGS, INC.

Defendants. ---.. -----. --------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on notice of motion filed on January 24, 2024, under motion sequence number one, by Avis Rent A Car System, LLC, Avis Budget Car Rental, LLC i/s/h/a Avis, Avis Ca~ Re,i;i,!~l_.)11~ }\y\s Corporat(on, Avis Global Holdings, Inc., and Rental Car Intermediate Holdings lpc;.<· ,., (hereinafter the defendants or Avis) for an order pursuant to CPLR 3211 (a) (7} · --~·.\ ·r a dismissing the comp lain t of John Aretakis (hereinafter plain tiff). The motion is opposed.

-Notice of motion 1 -Affirmation in support Exhibits A-B -Affidavit in opposition -Affirmation in reply Exhibits A-G -Affirmation in reply in further support -Memorandum of law in reply

1 To the right of the caption of the notice of motion the defendants wrote the following text "Notice of motion to dismiss the complaint or in the alternative to amend the answer". Nowhere in the defendants' motion papers is there any mention of a request to amend the answer. Nor did the defendants annex a proposed amended answer. It is therefore disregarded and ignored as an irregularity pursuant to CPLR 2001.

[* 1] 1 of 6 FILED: KINGS COUNTY CLERK 06/10/2024 04:31 PM INDEX NO. 483/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/10/2024

BACKGROUND

On July I 0, 2023, plaintiff, proceeding prose, conm1enced the instant action by

filing a summons and verified complaint with the Kings County Clerk's office (KCCO).

On November 22, 2023, the defendants interposed and filed an answer with the KCCO.

The verified complaint alleges thirty-seven allegations of fact in support of four

·denominated causes of action. The first cause of action sounds in negligence. The

second is denominated as an intentional tort warranting punitive damages. The third is

for breach of contract. The fourth is for violation of General Business Law 429 2 •

The complaint as supplemented by the plaintiff's affidavit in opposition to the

motion alleges the following salient facts. Plaintiff rented a car from Avis for an ·agreed

upon period. Plaintiff returned the car at the end of the agreed upon period. The

defendants nevertheless continued to charge the plaintiff for the rental after the car was

returned and then accused him of the crime of theft of that same car resulting in the

involvement of.law enforcement.

MOTION PAPERS

Avis's motion papers consist of a notice of-motion, an affirmation in support, and

two annexed exhibits labeled A and B. Exhibit A is described as a copy of the complaint

received by Avis. Exhibit Bis a copy of Avis's answer.

Plaintiff submitted an affidavit in opposition. Avis submitted a memorandum of

law and a further affirmation with seven annexed exhibits labeled A through G in reply.

2 Itis apparent that the plain tiff was refening to Genera I Business Law 349 and not 429; the mistake is therefore disregarded as an irregularity pursuant lo CPLR 200 I.

[* 2] 2 of 6 FILED: KINGS COUNTY CLERK 06/10/2024 04:31 PM INDEX NO. 483/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/10/2024

Exhibit A is described as a list identifying Avis's subsidiaries and affiliates registered in

New York. Exhibit Bis another copy of the complaint received by Avis. Exhibit C is

another copy of Avis's answer. Exhibit Dis described as a receipt of the transaction of

plaintiff's automobile rental from Avis. Exhibit Eis described as correspondence that

Avis sent to the plaintiff. Exhibit Fis described as a copy of the plaintiff's opposition

papers to the instant motion. Exhibit G is described as an NCIC report:

LAW AND APPLICATION

By notice of motion, filed on January 24, 2024, Avis seeks an order pursuant to

CPLR 3211 § (a) (1 ) 3 and CPLR 3211 § (a) (7) dismissing the complaint. The affirmation

in support of Avis's motion was made by Teresa L. Staiano. The affirmation contains

four numbered statements stating the following. Staiano is Avis's' counsel. The

affirmation is submitted in support of the motion. A copy of the complaint is annexed as

exhibit A. A copy of Avis's answe_r is annexed as exhibit B. Nothing else was submitted

with Avis's moving papers.

CPLR 2214 (a) provides that a notice of motion shall "specify the time and place

of the hearing on the motion, the supporting papers upon which the motion is based, the

relief demanded and the grounds therefor" (Abizadeh v Abizadeh, 159 AD3d 856,857 [2d

Dept 2018]).

CPLR 22 l 4 ( c) provides, in pertinent part:

3 Neither the notice of motion nor the affirmation in support stated that Avis was seeking dismissal of the complaint pursuant to CPLR 3 211 (a) (I). Avis mentions CPLR 3211 (a) (I) for the first time in the a ffim1a tion and in the memorandum of law in reply. ·

[* 3] 3 of 6 FILED: KINGS COUNTY CLERK 06/10/2024 04:31 PM INDEX NO. 483/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 06/10/2024

"Each party shall furnish to the court all papers served by him. The moving party

shall furnish at the hearing all other papers not already in the possession of the court

necessary to the consideration of the questions involved. Only papers served in

accordance with the provisions of this rule shall be read in support of, or in opposition to,

the motion, unless the court for good cause shaH otherwise direct."

Contrary to the requirements of CPLR 2214, Avis offered no law, facts, or

argument in support of its motion to dismiss the complaint.

Dismissal pursuant to CPLR § 3211 (a) (1)

A motion to dismiss based on CPLR 3211 § (a) (1) may be granted only "where the

documentary evidence utterly refutes plaintiffs factual allegations, conclusively

establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN.Y, 98

NY2d 314,326 [2002]). For evidence to be considered documentary, it "must be

unambiguous and of undisputed authenticity'' (Fontanetta v John Doe J, 73 AD3d 78, 86

[2d Dept 201 OJ). "Judicial records, as well as documents reflecting out-of-court

transactions such as mortgages, deeds, contracts, and any other papers, the contents of

which are essentially undeniable, would qualify as documentary evidence in the proper

case" (Bedford-Carp Constr., Inc. v Brooklyn Union Gas Co., 215 AD3d 907,908 [2d • Dept 2023 ], quoting Fontanetta, 73 AD3d at 84:85).

Here, the affirmation of Avis's counsel does not constitute documentary evidence

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2024 NY Slip Op 31989(U), Counsel Stack Legal Research, https://law.counselstack.com/opinion/aretakis-v-avis-nysupctkings-2024.