Opinion
703618/2016
10-20-2016
Santiago Martinez, Plaintiff, v. Keyi Zhang, DAHLIA GROUP, INC., DAHLIA GROUP, INC. of MASSACHUSETTS, VMC TRAVEL EXPRESS, LLC and VMC EAST COAST, LLC, Defendants.
The following electronically filed documents read on this motion by defendant VMC TRAVEL EXPRESS, LLC (VMC Travel) for an Order pursuant to CPLR 3211(a)(1) and (7), dismissing plaintiff's complaint; and on this cross-motion by plaintiff for sanctions against defendant VMC Travel and for an Order pursuant to CPLR 3025(b), amending the caption to add an additional party defendant and to add a cause of action against said party: Papers Numbered Notice of Motion-Affirmation-Exhibits EF 12-22 Notice of Cross-Motion EF 23 Affirmation in Reply-Exhibits EF 25-29
This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a motor vehicle accident that occurred on February 8, 2016. Plaintiff was a passenger aboard a bus owned by defendant Dahlia Group, Inc. of Massachusetts. The bus was operated by defendant Keyi Zhang. The complaint alleges that the bus was leased, chartered, and/or rented by VMC Travel Express, LLC and VMC East Coast, LLC for the purpose of transporting customers to and from Mohegan Sun Casino.
Plaintiff commenced this action by filing a summons and complaint on March 23, 2016. Defendant VMC Travel now moves to dismiss the complaint on the grounds that it was incorrectly named as a party defendant as it was not involved in any away in providing services to Mohegan Sun Casino or plaintiff. Although plaintiff contends that the motion is untimely, in reply VMC Travel submits an executed stipulation extending the time to answer or move with respect to plaintiff's complaint to June 15, 2016. Accordingly, VMC Travel's motion is timely and will be decided herein.
In support of its motion to dismiss, VMC Travel submits an affidavit from Victor Duong, the Chief Executive Officer of VMC Travel. Mr. Duong affirms that VMC Travel was not providing any services to Mohegan Sun Casino or involved in any way in the transportation of plaintiff or any other individual to and/or from Mohegan Sun Casino.
VMC Travel also submits a copy of its formation documents and a copy of VMC East Coast, LLC's (VMC East Coast) formation documents to establish that they are two distinct corporate entities, a service agreement between Mohegan Sun and VMC East Coast, and a service agreement between SuperWorld Express Corp. and VMC East Coast relating to the services to be provided to Mohegan Sun Casino. Lastly, VMC Travel has annexed a sample ticket for transportation to Mohegan Sun Casino issued by VMC East Coast, LLC, not VMC Travel.
In opposition, plaintiff's counsel contends that although plaintiff purchased a ticket from VMC East, the ticket contains a telephone number which connects customers to VMC Travel. Additionally, the second page of the ticket contains rules and regulations for VMC, but does not differentiate between VMC Travel and VMC East. Counsel further affirms that VMC East and VMC Travel share the same address and phone, and VMC Travel's website provides a daily bus schedule for Mohegan Sun Casino. Counsel contends that there is no documentation that VMC East is not a subsidiary, subdivision, and/or agent of VMC Travel. Lastly, counsel contends that the contract between VMC East Coast and Mohegan Sun Casino initially listed VMC Travel as a signatory.
"To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Teitler v Pollack & Sons, 288 AD2d 302 [2d Dept. 2001]). A motion to dismiss a complaint based on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Stein v Garfield Regency Condominium, 65 AD3d 1126 [2009], quoting Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]).
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]; Leon v Martinez, 84 NY2d 83[1994]; Greer v National Grid, 89 AD3d 1059 [2d Dept. 2011]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679 [2d Dept. 2011]).
As discovery has not yet been completed and as VMC East has not affirmatively stated that it is the party which provides the services to Mohegan Sun Casino, this Court finds that the documentary evidence submitted by VMC Travel does not utterly refute plaintiff's factual allegations set forth in the complaint. Moreover, although counsel for VMC East represents both VMC East and VMC Travel, VMC Travel has not supplied proof as to who signed the relevant services agreements and as to whether or not they were in effect at the time of the subject accident.
Regarding plaintiff's cross-motion, in the absence of significant prejudice or surprise to the opposing party, leave to amend a pleading should be freely given (see CPLR 3025[b]; Edenwald Contr. Co. v City of New York, 60 NY2d 957[1983]; Russo v Lapeer Contr. Co., Inc, 84 AD3d 1344 [2d Dept. 2011]), unless the proposed amendment is palpably insufficient or patently devoid of merit (see Bernardi v Spyratos, 79 AD3d 684 [2d Dept. 2010]; Martin v Village of Freeport, 71 AD3d 745 [2d Dept. 2010], and provided the amendment does not prejudice or surprise the opposing party (see Douglas Elliman, LLC v Bergere, 98 AD3d 642 [2012]). Here, the addition of Superworld Express Corp. as a party defendant is not palpably insufficient or devoid of merit, and there is no prejudice to defendants in allowing plaintiff to amend the complaint at this early stage of the proceedings.
Lastly, plaintiff's request for sanctions pursuant to 22 NYCRR 130-1.1 for frivolous conduct is denied.
Accordingly, based on the arguments set forth above, it is hereby
ORDERED, that defendant VMC TRAVEL EXPRESS, LLC's motion to dismiss is denied; and it is further
ORDERED, that plaintiff's cross-motion is granted to the extent that plaintiff is given leave to amend the summons and complaint to add Superworld Express Corp. as a party defendant; and it is further
ORDERED, that the caption of the action shall be amended to reflect the foregoing, and all papers to be served and filed herein shall bear the following caption:
ORDERED, that within thirty (30) days of the date of this order, plaintiff shall serve and file the supplemental summons and amended complaint in the form annexed to the cross-motion papers as Exhibit E. Dated: October 20, 2016
Long Island City, NY _______________________
ROBERT J. MCDONALD
J.S.C.