Ruane v. Depierro

2024 NY Slip Op 32582(U)

• Court: New York Supreme Court, Kings County
• Decided: July 26, 2024
• Docket: Index No. 522887/2022
• Status: Unpublished

Opinion

Ruane v Depierro 2024 NY Slip Op 32582(U) July 26, 2024 Supreme Court, Kings County Docket Number: Index No. 522887/2022 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 07/26/2024 04:54 PM INDEX NO. 522887/2022 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 07/26/2024

At an IAS Tei'ln, Part52 of the Sopreme:Comt 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 26th day of JulY2024

HONORABLE FRANCOIS A RIVERA ________ : ---. ------------------------------- ·--. --. ---- .---------· X MATTI RUANE, DECISION & ORDER

Plaintiff, TndexNo.: 522887/2022 -against- Ms.2 CEZANNE DEPIERRO, MARIE 'MENOS DEPIERRO, ROLAND GILLES, and M C DERMODY,

Defendants. -· ------.: --· -- .--. ----· -- .------------- ·----------· ---------------X Recitation . in accordance with CPLR 2219 (a} ofthepapers considered on the notice of motion filed on October 2, 2023, under motion sequence number two, by defendant Christopher Dermoqy, s/h/a M C Denhody (hereinafter movartt}for an order pursuant to CPLR 3212 granting summary judgment in his favor and dismissing Matti Ruane;s (hereinaftei" plaintiff) complaintat1d all cross claims pursuantto CPLR 3211. The rhotion is opposed.

-Notice ofmotion -Affirmation in support ExhibitsA-J -Affirrhation in opposition -Affirmation in reply -Affidavit in reply -Memorandum oflaw in reply -State,nent.of matedal facts

BACKGROUND On August9 .~.022~ plajhtiffcom111enced the•instant action fotdamages for 1

petsonial injury by filing a su1n1non:s and verified complaint with the Kings County.

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Clerk's office {KCCO}. On February 6, 2023, the movant interposed and filed a verified

answer.

Plaintiff's verified complaint alleges·the following salient facts. On June22, 2022,

defendant,. Cezanne Depierro, was operating a 2019 Subaru; bearing license plate number

JEG8757 with the permission of its owner; Marie Menos Depierro on 907C Westbound

of the Belt Parkway and Fountain Avenue, Brooklyn, New York. On the same elate, time;

and place, defendant, Roland Gilles was operating a 2019 Subaru, bearing Arizona

licenseplate number EX65883 with the petn1ission ofits ownel', the movant (hereinafter

the adverse vehicle). On the same date; time, and place, plaintiff, Matti Ruane was

operating a·2021 Nissan: bearing New York.State license platenumberJCB1468.

On the same date, time and place, the vehicle operated by the plaii1tiff and the

vehicfo operated by defendant, Roland Gilles came into contact. On the same date, time,

and place, the ,;ehicle operated by Plaintiff, Matti Ruane, ai1d the vehicle operated by

Defendant, Cezanne Depierro came into contact. As a result of the occurrence, plaintiff

was seriously injured. The occurrence was caused wholly and solely by reason of the

negligei1ce ofthe defendants without any fault or negligence ori the part of the plaintiff

contributing thereto.

:On March 28, 2024, the Court gave the movant until April 18; 2024, to file a

state111 ~nt of material facts and gave the plain ti ff until May 9, 2024 to file a.

counten;tatemeilt ofinaterial facts in accordance with the Uniforrh Rules for the New

York State.Trial Courts (22 NYCRR) § 202}~~g.

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The movant timely complied, but the plaintiff did not submit a counterstatementof

material facts.

LAW AND APPLICATION

The movant's evidentiary submission established the followingfacts. Plaintiff was

allegedly injllfed in a three-car accident that occurred on June 22, 2022. The subject

accident occurred on the westbound Belt Parkway. Plaintiff was operating his motor

vehicle in the middle lane of the Belt Parkway; Plaintiff's vehicle and to-defendant

Cezanne Depierro's vehicle were hit in the rear by a motor vehicle operated by co-

defendant Roland Gilles. At the time of the accident, co--defendant Roland Gilles was . . . . ..

operating a 2009 Toyota sedan bearing Arkansas license plate number EX65 8 83. The

statement of material facts submitted by the movant state facts pointing to evidence

showing that the movant was not the owner of the vehicle that Roland Gilles was

operating at the time of the accident.

Uniform Rules for the New York State Trial Courts (22 NYCRR) § 202;8~g (e)

provides as follows:

{e) In the event that the proponent of a motion for summary judgment fails to provide a statement of undisputed facts though required todo so, the court may order compliance and adjourn the motion, may deny the motion withoutprejudice torenewal upon compliancei onnay take such other action as may b(! just a11d :appropriat~. In the event that tb,e oppo11.e11t of a motion for suinmary judgment foils to provide ariy courtter statement ofui1disputed facts though require:d to clQ so, the court.mµy order compliance and adjourn the motioh 1 may, a·fter notice to the iopponent and opporturitty to cure, deerrt the assertions contained in the proponent's ·statementto be admitted fot purposes of the mod on, or may take. such lather action as. may be just and appropriate. ·

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In accordance with 22 NYCRR 202.8,.g (e), the facts alleged in the movant's statement of

material facts is deemed admitted by the plaintiff, namely, that the movant was not the

ownerlofthe tnotor·vehicle that co-defendant.Roland Gilles was·.operating at the time of

the acc;ident (see 22 NYCEE202.8-g [e]).

The only theory of liability asserted against the movant is that the movant is the

owner of the adverse vehicle in the subject accident and by applying Vehicle and Traffic

Law § 388 to that alleged fact. Therejs no claim of direct negligence by the inovant.

"Vehidle and Traffic Law § 3 88 (1) makes every owner of a vehicle liable for injuries

resulting from negligence in the use or operation of such vehicle... by any person using or

operating the same with the permission, express or implied, of such owner."(State Farm . .

Fire& Cas. Co. vSajewskf; l50AD3d 1297, 1297 [1st Dept 2017], quoting Murdza v

Zimmerman, 99 NY2d 375, 380 [2003]).

Withthe finding that the movant is not the owner ofthe adverse vehicle there is no

viable theory of liability against the movant. Accordingly, the movant's motion to dismiss

the plaintiff's complaint is granted.

:Co-defendants Cezanne Depierro and Marie Menos Depierro have a·lso opposed

themovant's motion contendingthat it was made prematurely. They also failed to submit

a counterstatement of material facts. ·'A pmty who contends that a summary judgment

motion is premature is re.quired to demonstrate that discovery inight lead to relevant.

evidence or the facts essential to justify opposition to the motion were exclusively within

the.knowledge and control of the movanr (Kagan v Ameriprise Fin Servs., Inc., 191

AD3d ~54 [2d bept202J], citing,Cajas-Romero v .Ward; 106 AD3d 850,852 [2d D~pt

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20131). «The mere hope or speculation that evidence to defeat a motion for summary

judgment may be uncovered during the discovery process is insufficient to deny a motion

for summary judgment" (Paulv Village ofQuogue, 178 AD3d 942, 944 [2d Dept2019]).

Here, the co-defendants have failed to establish howfurthet discovery may lead to the

disclosure of facts necessaiy to properly oppose the movant's motion.

CONCLUSlQN

the inotion by defendant Christopher Dermody, s/h/a M C Demrndy for an order

pursuant to CPLR 3212 g;ranting summary judgment in his favor and dismissing the

compl~int ofplaintiffMatti Ruane and the cross claims of co-defendant Cezanne

Depierro and Marie Menas Depierro is granteo.

The foregoiltg constitutes the decisionand order of this Court.

ENTER: ~A~ J.S.C.

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