Opinion
60023/07.
Decided August 1, 2008.
Andrew J. Contrino, Sean M. Prendergast, Esq., HAWKINS FERETIC DALY, LLC,, New York, NY, Counsel for Defendant.
John V. Wynne, Esq., BARRY, McTIERNAN MOORE,, New York, NY, Counsel for Plaintiff.
Defendant, Andrew J. Contrino ("Contrino"), moves for an Order pursuant to CPLR 3212 granting defendant's motion for summary judgment, dismissing the complaint as to him and dismissing all cross-claims and directing that judgment be entered in his favor on the ground that the plaintiff cannot establish a case of negligence as to him.
The underlying action involves a one car collision wherein a vehicle owned by defendant Contrino and operated by defendant Thomas J. Barbaria ("Barbaria"), collided into the toll plaza at the Verrazano Narrows Bridge, Staten Island, New York. The accident occurred on October 13, 2006. The plaintiff seeks $7,437.35 for property damages, due to defendants' negligence.
The instant motion is predicated upon the assertion that defendant Barbaria did not have defendant Contrino's permission or consent to operate the vehicle. The vehicle in question, owned by defendant Contrino, is a 2006 Cadillac. On October 13, 2006, the vehicle was stolen by defendant Barbaria, when Barbaria took the keys to the vehicle without Contrino's permission. Both men were at the Dolphin Gym on Amboy Road, Staten Island, New York. The keys to Contrino's vehicle were left at the front counter of the gym by Contrino. Barbaria apparently obtained the keys and stole the vehicle. When Contrino discovered the keys and his car were missing, he reported the car as stolen to the New York City Police Department. Defendant Barbaria was arrested at the Verrazano Narrows Bridge toll plaza on October 13, 2006, after colliding into the toll plaza, for stealing and driving the 2006 Cadillac into the toll plaza.
Subsequently, on March 2, 2007, Barbaria plead guilty to Criminal Possession of Stolen Property in the Third Degree. On March 16, 2007 Barbaria was sentenced to two to four years incarceration for the crime.
Pursuant to Vehicle and Traffic Law § 388 (1), the negligence of the driver of a vehicle is imputed to the owner provided that the driver used the vehicle with permission. Although there is a presumption of permissive use, "that presumption continues until rebutted by substantial evidence to the contrary." ( Greater NY Mut. Ins. Co. v Clark, 205 AD2d 857, 858, lv denied 84 NY2d 807; see, Matter of Allstate Indem. Co. v. Nelson, 285 AD2d 545). The presumption is deemed rebutted when, e.g., it is established that the subject vehicle was stolen at the time the collision occurred. ( Stevens v Calspan-Corp., 292 AD2d 809). Harris v. Jackson 30 AD3d 1027, 1029, 2006 NY Slip Op. 04583, 2 (NY, 2006)).
The case of S.T. Grand, Inc. v. City of New York, 32 NY2d 300, 304-305, 344 NYS2d 938, held that a criminal conviction after trial is conclusive proof of its underlying facts in a subsequent civil action. ( Merchants Mut. Ins. Co. v. Arzillo 98 AD2d 495, 502, 472 NYS2d 97, 102 (N.Y.A.D. 2 Dept.,1984)). Further, a guilty plea is equivalent to a conviction after trial for issue preclusion purposes and that a guilty plea precludes relitigation in a subsequent civil action of all issues necessarily determined by the conviction. ( Merchants Mut. Ins. Co. v. Arzillo, supra at 504).
In the instant case, defendant Contrino has rebutted the presumption of permissive use by virtue of the fact that defendant Barbaria admitted stealing the subject vehicle by pleading guilty and being sentenced for the crime.
CPLR § 3212(b) requires that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
It is well-settled that the moving party has the prima face burden of establishing its cause of action or defense by offering proof in admissible form, such proof being sufficient to warrant a judgment as a matter of law in its favor. (CPLR 3212[b]) ; (Ciccone v. Bedford Cent. School Dist., 21 AD3d 437, 800 NYS2d 452 (2nd Dept. 2005) ; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979)).
Bare conclusory allegations are insufficient to defeat a motion for summary judgment. ( Spearman v. Times Square Stores, Inc. 96 AD2d 552, 553 (2d Dept 1983)). Affidavits and affirmations of counsel without requisite knowledge are insufficient and without probative value to establish the cause of action or defense. ( Stainless Inc. v. Employees Ins., 69 AD2d 27, 32 (1st Dept 1983); Zuckerman v. City of New York, supra at 560, 562). Further, the law is well settled that a party opposing a motion for summary judgment must assemble and lay bare affirmative proof to demonstrate the existence of a genuine triable issue of fact. A party's expression of hope and unsubstantiated assertions are insufficient. Evidentiary proof in admissible form is required. (Zuckerman v. City of New York, 49 NY2d 557, 560, 562, 427 NYS2d 595 (1980)). The opposition submitted to the motion by both plaintiff and defendant Barbaria contains only an affirmation by counsel for the respective parties, and not an affidavit by someone with knowledge of the facts.
Both plaintiff and defendant Barbaria have failed to demonstrate that facts essential to oppose the motion exist and might be obtained by discovery ( see, CPLR 3212 [f]; Franklin v. Dormitory Auth., State of NY, 291 AD2d 854, 736 NYS2d 816; Maron v. Hillside Children's Ctr., 247 AD2d 871, 667 NYS2d 962; Stevens v. Calspan-Corp. 292 AD2d 809, 810, 739 NYS2d 792, 794 (N.Y.A.D. 4 Dept.,2002)). Additionally, Barbaria's liability herein is established by his guilty plea.
Since neither the plaintiff, nor defendant Barbaria, has shown factssufficient to require trial of any issue of fact, defendant Contrino's motion for summary judgment dismissing the complaint and the cross-claims is granted. The complaint is dismissed as to defendant Andrew J. Contino, only. The case may continue as to defendant Thomas J. Barbaria.
Movant shall serve a copy of this Order with Notice of Entry upon all parties and the appropriate court clerk within twenty (20) days of this Order.
The foregoing shall constitute the Decision and Order of the Court.