From Casetext: Smarter Legal Research

Mural v. Hubert's Serv.

STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE
Jan 15, 2019
2019 N.Y. Slip Op. 33954 (N.Y. Sup. Ct. 2019)

Opinion

Index No.: 808751/2016 Index No.: 802096/2017 Index No.: 803533/2017 Index No.: 804610/2017

01-15-2019

ANGELA MURAL, Plaintiff, v. HUBERT'S SERVICE, INC., BERNARD HUBERT, III, SANFORD LEVIN, WILLIAM MILLER, KAY MILLER, and RICHARD SINGH, Defendants. RICHARD SINGH, Plaintiff, v. BERNARD HUBERT, III, SANFORD LEVIN, WILLIAM MILLER, and KAY MILLER, Defendants. WILLIAM D. MILLER and KAY MILLER, Plaintiffs, v. RICHARD SINGH, HUBERT'S SERVICE INC., BERNARD HUBERT, III, SANFORD LEVIN, Defendants. KAY L. MILLER, and JAMES P. MILLER, Plaintiffs, v. RICHARD S. SINGH, HUBERT'S SERVICE, INC., BERNARD HUBERT, III, and SANFORD LEVIN, Defendants. RICHARD S. SINGH, HUBERT'S SERVICE INC., BERNARD HUBERT, III, and, SANFORD LEVIN, Defendants/Third-Party Plaintiffs, v. WILLIAM D. MILLER, Third-Party Defendant.


NYSCEF DOC. NO. 114

Action #1

Action #2

Action #3

Action #4

Action #5

ORDER

The Defendants, William Miller and Kay Miller, by and through their attorneys, Hagelin Spencer LLC, having moved for summary judgment on the issues of William Miller's negligence and Richard Singh's negligence by way of the Notice of Motion, Attorney Affirmation, and Memorandum of Law of Matthew D. Pfazler, Esq., dated September 13, 2018, with exhibits attached;

The Defendants, Sanford Levin and Bernard Hubert, III, by and through their attorneys, Law Offices of John Wallace, having moved for summary judgment on the issues of Sanford Levin and Bernard Hubert's negligence; and as to Richard Singh's negligence by way of the Notice of Motion and Attorney Affirmation of Alyson C. Culliton, Esq., dated September 17, 2018;

The Defendants, Sanford Levin and Bernard Hubert, III, by and through their attorneys, Law Offices of John Wallace, having moved for bifurcation of trial, by way of the Notice of Motion and Attorney Affirmation of Alyson C. Culliton, Esq., dated October 16, 2018, with exhibits attached;

The Defendants, William Miller and Kay Miller, by and through their attorneys, Hagelin Spencer LLC, having supported Defendants Sanford Levin and Bernard Hubert's Motion for bifurcation by way of the Attorney Affirmation of Matthew D. Pfalzer, Esq., dated October 22, 2018;

The Plaintiffs, William Miller and Kay Miller, by and through their attorneys, Magavern Magavern Grimm, LLP, having supported Defendants Sanford Levin and Bernard Hubert's Motion for bifurcation by way of the Attorney Affirmation of Edward J. Murphy, III, Esq., dated November 5, 2018;

The Plaintiffs, William Miller and Kay Miller, by and through their attorneys, Magavern Magavern Grimm, LLP, having Cross-Moved for summary judgment on the issues of Richard Singh's negligence and serious injury by way of the Notice of Cross-Motion, Attorney Affirmation, and Memorandum of Law by Edward J. Murphy, III, Esq., dated November 12, 2018, with exhibits attached;

The Plaintiffs, William Miller and Kay Miller, by and through their attorneys, Magavern Magavern Grimm, LLP, having opposed the Motion for summary judgment on the issues of Sanford Levin and Bernard Hubert's negligence by way of the Attorney Affirmation and Memorandum of Law by Edward J. Murphy, III, Esq., dated November 12, 2018, with exhibits attached, in opposition thereto;

The Plaintiffs, James Miller and Kay Miller, by and through their attorneys, John J. Fromen, P.C., having Cross-Moved for summary judgment on the issues of Richard Singh's negligence, substantial factor, serious injury, and proximate cause of Plaintiffs' injuries, and dismissal of culpable conduct and seatbelt violation affirmative defenses as alleged by the Defendants, by way of the Notice of Cross-Motion and Attorney Affirmation of John J. Fromen, Esq., dated November 17, 2018, with exhibits attached;

The Plaintiffs, James Miller and Kay Miller, by and through their attorneys, John J. Fromen, P.C., having Cross-Moved for bifurcation by way of the Notice of Cross-Motion and Attorney Affirmation of John J. Fromen, Esq., dated November 19, 2018, with exhibits attached;

The Plaintiff, Richard Singh, by and through his attorneys, Cantor & Wolff, having opposed the respective summary judgment motions on the issue of negligence filed by Defendants William Miller, Kay Miller, Sanford Levin, and Bernard Hubert, and supported the motions to bifurcate by way of the Attorney Affirmation of David J. Wolff, Jr., Esq., dated November 21, 2018, with exhibits attached;

The Plaintiff, Angela Mural, by and through her attorneys, Finkelstein & Partners, LLP of counsel to Jacoby & Meyers, LLP, having Cross-Moved for summary judgment on the issues of serious injury and liability, and having opposed the respective summary judgment motions on the issue of negligence filed by Defendants William Miller, Kay Miller, Sanford Levin, and Bernard Hubert by way of the Notice of Cross-Motion and Attorney Affirmation of James W. Shuttleworth, III, Esq., dated December 5, 2018, with exhibits attached, and by way of the Physician's Affirmation of Christopher Ritter, M.D., dated November 30, 2018, with exhibits attached;

The Plaintiffs, James Miller and Kay Miller, by and through their attorneys, John J. Fromen, P.C., having submitted the Supplemental Affidavit of John J. Fromen, Esq., dated December 6, 2018, in further support of their Motion for Summary Judgment on the issue of serious injury;

The Defendants, Sanford Levin and Bernard Hubert, III, by and through their attorneys, Law Offices of John Wallace, having further supported their motion for summary judgment on the issue of negligence, having supported the respective motions for summary judgment as to the negligence of Defendant Singh filed by Plaintiffs William Miller, Kay Miller, and James Miller and Defendants William and Kay Miller, and having taken no position on the merits of Plaintiffs Kay Miller and James Miller's motions for summary judgment on the issue of serious injury by way of the Attorney Affirmation of Alyson C. Culliton, Esq., dated December 6, 2018, with exhibits attached;

The Defendant, Richard Singh, by and through his attorneys, Law Offices of Destin C. Santacrose, having opposed the respective motions for summary judgment on the issue of negligence filed by Defendants William Miller, Kay Miller, Sanford Levin, Bernard Hubert, and Plaintiff William Miller, by way of the Attorney Affirmation of Kevin F. Walsh, Esq., dated December 11, 2018;

The Defendant, Richard Singh, by and through his attorneys, Law Offices of Destin C. Santacrose, having supported the Defendants Sanford Levin and Bernard Hubert's Motion to bifurcate by way of the Attorney Affirmation of Kevin F. Walsh, Esq., dated December 12, 2018;

The Defendants, William Miller and Kay Miller, by and through their attorneys, Hagelin Spencer LLC, having further supported their Motion for Summary Judgment on the issue of negligence, and having opposed Plaintiff Mural's Cross-Motion on serious injury, by way of the Attorney Affirmation of Matthew D. Pfalzer, Esq., dated December 12, 2018, with exhibits attached;

No parties having opposed Defendants Sanford Levin and Bernard Hubert's or Plaintiffs James Miller and Kay Miller's Motions for bifurcation;

And counsel for the parties having appeared before the Court for oral argument on December 17, 2018, and pursuant to the Court's Decision transcript, which is attached hereto, it is hereby;

ORDERED, that Defendants William and Kay Miller's Motion for Summary Judgment on the issue of William Miller's negligence is GRANTED, and any and all Complaints, crossclaims, and counterclaims against William and Kay Miller are DISMISSED on the merits with prejudice; and it is further

ORDERED, that the Third-Party Complaint against William Miller is hereby DISMISSED with prejudice on the merits; and it is further

ORDERED, that Defendants William and Kay Miller's Motion for Summary Judgment with respect to Richard Singh's negligence, Defendant Sanford Levin and Defendant Bernard Hubert's Motion for Summary Judgment with respect to Richard Singh's negligence, Plaintiff William Miller's Motion for Summary Judgment with respect to Richard Singh's negligence, and Plaintiffs Kay and James Miller's Motion for Summary Judgment with respect to Richard Singh's negligence and substantial factor are GRANTED, and Richard Singh is deemed negligent as a matter of law in all of the above-captioned actions and it is deemed that his negligence was a substantial factor in causing the subject accident; and it is further

ORDERED, that Defendants Sanford Levin and Bernard Hubert's Motion for Summary Judgment on the issue of negligence in their favor is hereby DENIED, and the issue of Defendants Sanford Levin and Bernard Hubert's negligence shall be determined at trial; and it is further

ORDERED, that Plaintiff Angela Mural's Motion for Summary Judgment on the issue of liability is hereby DENIED; and it is further

ORDERED, that Plaintiff William Miller's Motion for Summary Judgment on the issue of the serious injury threshold pursuant to New York Insurance Law § 5102(d) is hereby GRANTED; and it is further

ORDERED, that Plaintiffs Kay and James Miller's respective Motions for Summary Judgment on the issues of the serious injury threshold and proximate cause of their injuries pursuant to New York Insurance Law §5102(d) are hereby GRANTED; and it is further

ORDERED, that Plaintiff Angela Mural's Motion for Summary Judgment on the issue of the serious injury threshold pursuant to New York Insurance Law § 5102(d) is hereby GRANTED; and it is further

ORDERED, that each of the Motions seeking a bifurcated trial are hereby GRANTED; and it is further

ORDERED, that Plaintiffs Kay and James Miller's Motion to Dismiss any and all affirmative defenses with regard to the usage of seatbelts is hereby GRANTED; and it is further

ORDERED, that Plaintiffs Kay and James Miller's Motion to Dismiss any and all affirmative defenses with regard to culpable conduct on the part of Plaintiffs Kay and James Miller is hereby GRANTED; and it is further

ORDERED, that a trial on the issue of the alleged negligence of Bernard Hubert and Sanford Levin and on the apportionment of negligence among Richard Singh and any other negligent parties will commence with jury selection on March 18, 2019. ENTERED:

January 15, 2019

/s/_________

HON. FRANK A. SEDITA, III, J.S.C.


Summaries of

Mural v. Hubert's Serv.

STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE
Jan 15, 2019
2019 N.Y. Slip Op. 33954 (N.Y. Sup. Ct. 2019)
Case details for

Mural v. Hubert's Serv.

Case Details

Full title:ANGELA MURAL, Plaintiff, v. HUBERT'S SERVICE, INC., BERNARD HUBERT, III…

Court:STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE

Date published: Jan 15, 2019

Citations

2019 N.Y. Slip Op. 33954 (N.Y. Sup. Ct. 2019)