Evart v. Gerta Gente, LLC

Evart v Gerta Gente, LLC 2023 NY Slip Op 34579(U) January 5, 2023 Supreme Court, New York County Docket Number: Index No. 101138/2022 Judge: Mary V. Rosado 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.

INDEX NO. 101138/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice ·····-·························----··-······-······-··········-··X INDEX NO. 101138/2022 CLAUDIA EVART, MOTION DATE 02/02/2023 Plaintiff, MOTION SEQ. NO. 001 • V .

GERTA GENTE, LLC. DECISION + ORDER ON MOTION Defenda nt.

·····························-·-·-·-·-·························---X The following e•filed documents. listed by NYSCEF document number (Motion 001 ) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22. 23, 24, 25, 26, 27 were read on this motion to/for DISMISS Upon the foregoing documents, and al1er oral argument which occurred on August 16, 2023 wi th Jose A. Muniz, F.sq. appearing for Plaintiff Claudia Evart (" Plaintiff') and Scolt R. Dinstcll, Esq . appearing for Defendant Certa Gentc, LLC rDcfcndant"), Defendant's motion seeking summary judgment in favor of, and dismissal of all claims against Defendant, is granted.

I. Background ancl Procedural History This action concerns a motor vehicle accident alleged to have occurred on March 23 , 2015 (NYSCEF Doc. 6 at 19). Plaintiff: pro se. commenced this lawsuit by filing a Summons with Notice wi th the New York County Clerk's Office on December 5, 2022 (NYSCEF Doc.

12). On December 23, 2022, Plaintiff served a Complaint and Jury Demand on Defendant (NYSCF.F Doc. 15).

Plaintiff' s Complaint asserts that Defendant is an Ttalian Restaurant in New York City, owned and operated by Franco Lazzari ("Lazzar i''), Stafano T erri ('Terzi") and Daniel Kucera ("Kucera") (NYSCEF Doc. 6 at ~4). Plaintiff claims that on March 23, 2015 , a vehicle owned by Terzi and operated by Lazzari (the " Vehicle"), struck Plaintiff while Plaintiff was lawl'ully 101138/2022 EVART, CLAUDIA vs. CERTA GENTE, LLC Page 1 of 5 Motion No. 001

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Plaintiff claims that l)cfcndant is vicariously liable [or Plaintiff's alleged injuries under a theory of negligent cntrusuncnt (NYSCEF Doc. 6 at~ 18).

Previously. on October 29, 2015, Plaintiff filed a separate lawsuit against l.a,,_.zari and Ter,;i in the Kew York County Supreme Court, captioned Claudia Hvar1 v S,ejano Terzi and 1-i·anco La:zari. bearing Index ;,lumber 161123,'20 IS (the "Previous Action"') (NYSCF.F Doc.

23). Plaintitrs Complaint in the Previous Action asserted claims for negligence against Lazzari and Tcrzi for allegedly causing Plaintiff's \-larch 23, 2015 Accident (NYSCEF Doc. 23 at ,16).

At an appearance before I Ion. James G. Clynes on July 14, 2022, Plainti ff settled the Previous Action with Lazzari and Tcrzi , agreeing to accept $250,000.00 in exchange lbr extinguishing her claims against them (NYSCEF Doc. 24).

On February 2, 2023 Defendant commcncc-d the instant motion seeking an Order granting summary judgment in favor of Defendant and against Plaintiff, and dismissing all claims against Defendant on the ground that the applicable statute of limitations expired prior to Plaintiff filing suit (NYSCF.F Doc. I 0). In support of its motion for summary judgment. Defendant filed an Affirmation in Support on February 2, 2023 (NYSCEF Doc. 10). Plaintiff, prose. filed an A ffim1ation in Opposition on April 20. 2023 (NYSCF.F Doc. 19). Defendant filed a Reply Affirmation on Apri l 25, 2023 (NYSCEF Doc. 22). 1 On July 25. 2023, .lose A. Muniz, Esq. filed a Notice of Appcarnnce on behalf of Plaintiff (l\YSCEF Doc. 28).

111 is noted Iha! Plaini iff li lcd a Sur-Reply on July 3, 2023 (NYSCEI' IJoc. 27). The Pa,1 33 Rules stale lhal " [n)o sur-rcply papers arc pcrrnillcd" and " [m)a1crials submined in violation o f ihis rule will he disrcgurdcd by the Cou11.'' According!)', Plainti frs Ju ly 3, 2 023 Sur-Reply w ill not be considered.

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II. Discuss ion A. Plaintiffs Personal Injury Claims A!!ainst Defendant arc 13an:ed bv Res Judicata In Kew York, res j11dicara "bars successive litigation based upon the same transaction or series of connected transactions•· (Mauer ofPeople ofthe Suue of New York, by Fliot Spitzer, as Attorney Gen. v Applied Card Sys., inc., 11 NY3d 105, 122 [2008]. Further, "settlement agreements arc entitled lo res j ud icata effect" (Id. at 124 citi ng Oly111pic Tower Assocs v. New York, 81 NY2d 961 fl 9931). For resj11dica1a to apply, the party against whom the doctrine is invoked must have been a party to the previous action, or in privily with a party who was (Id. at 122). The Court of Appeals has held that '·[gjenerally, to establish privily the com1cction between the parties must be such that the interest of the nonparty can be said to have been represented in the prior proceeding" (Green v Santa Fe Industries. Inc., 70 NY2d 244 [ 1987j).

Herc, Plaintifl's claims stem from the same March 23, 20 15 /\ccidelll as those in the Previous Action. Further. Plaintiff assens in his Complaint that De fendant is owned and operated by Lazzari and Terzi, the two defendants in the Previous Action. Accord ingly, the interests of Defendant were represented in the Previous Action. As such. the sculcment of the Previous Action is entitled to res judicata precluding Plaintifl's from asserting the instant claims, which stem from the same transaction al; the previously settled action, against Defendant, who is in privit:y with the de rendants in the Previous Action.

ll. Defendant' s Motion for Summarv Jud gnient is Granted Summary judgment is a drastic remedy, to be granted only where lhc moving party has tendered sunicient evidence to demonstrate the absence of any material issues of fact." (Vega v Restani Const. Corp. , 18 NY3d 499. 503 120121). The moving party' s ·'burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

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[* 3] 3 of 5 INDEX NO. 101138/2022 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/05/2024 moving party." (.Jacobsen v New York City Health and 1/osps. Corp. , 22 NY3d 824, 833120141).

Once this showing is made, the burden shifts to the party opposing the motion to produce cvi<lentiary proof, in admissible form, suflicient to establish ihc existence of material issues of fact which require a trial (see e.g , Zuckerman v City of New York, 49 l\Y2d 557. 562 [1980J: Pemberton,. New York City Tr. Auth., 304 AD2d 340,342 fl" Dept 20031). Mere conclusions of law or fact arc insufficient to defeat a motion for summary judgment (see Banco Popular North Am. ,, Victory Taxi Mgt .. Inc.. 1 NY3d 381 [20041).

Herc, the record establishes that Defendant is in privily wi th La;,.7.ari and Tcrzi, as Lazzari and Tcrzi arc two or the three principal owners and operators of Defendant (NYSCEF Doc. 6 at 1[4). Further. Plai nti frs claim in this action stems from the same Accident as that in his Previous Action. As it is well setlle<l that settlement agreements arc afforded prcclusivc effect pursuant to resj11dicata, scltlement of the Previous Action serves l<) har Plaintiffs claims against Dcl"c11dan1 in this case.

As Plaintiff has faiJc.d to produce evidentiary proof, in admissible form , sullicicnt io establish the existence of material issues of fact, Defendant's motion for summary judgment dismissing Plaintiff's claims against ii is granted.

Accordingly. it is hereby, ORDERED that Defendant Cena Genie, I.I.C's motion for summary judgment is granted, and PlaintifT Claudia Evart's Complaint and all claims against Defcndam arc dismissed; and it is further ORDERED that within ten days or entry, eoUJ1scl for Defendant shall serve a copy of this Decision and Order on Plaintiff; and it is further

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ORDF.RED Lhat the Clerk of Lhc Court is directed to enter judgment accordingly.

This constiLutcs the Decision and Order of the Court.

1/5/2023 /11~ V ;,, ,..,. J \. <..

DATE HON. MXRY V. ROSADO, J .S.C. CHECK ONE: x CASE OlSPOSEO N ON-FINAL DISPOSITION a GRANTED □ DENIED GRANTED lN PART □ OTHER APPUCATIOH: SETTLE ORDER SVBMIT OflOER CHECK fF APPAOPRfATE: lNCLUOES TRAHSFERJREASSIGN FIOUC1ARY APPOINTMENT □ REFERENCE

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