Portillo v. Carlson

• Decision Date: 12 December 2018
• Docket Number: 2016–07685,Index No. 32511/10
• Citation: 89 N.Y.S.3d 270,167 A.D.3d 792
• Parties: Rene Orlando PORTILLO, Appellant, v. Kevin CARLSON, Respondent.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 792

89 N.Y.S.3d 270

Rene Orlando PORTILLO, Appellant,

v.Kevin CARLSON, Respondent.

2016–07685

Index No. 32511/10

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 14, 2018

December 12, 2018

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Arshia Hourizadeh], of counsel), for appellant.

Karen L. Lawrence (Law Offices of James F. Sullivan, P.C., New York, NY, of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated May 2, 2016. The order, insofar as appealed from, denied the plaintiff's motion pursuant to CPLR 3124 to compel discovery, and granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion pursuant to CPLR 3124 to compel discovery is granted, and that branch of the defendant's cross motion which was for summary judgment dismissing the complaint is denied as premature, without prejudice to renew upon the completion of discovery.

The plaintiff allegedly was injured on October 25, 2007, when he was struck by a motor vehicle while riding his bicycle. Thereafter, the plaintiff commenced this action against the defendant, alleging that the defendant, inter alia, owned and controlled the vehicle. The defendant denied this allegation in his answer. During their depositions, the defendant and his wife, nonparty Diane Showman–Carlson (hereinafter Diane), each testified that Diane was operating the subject vehicle at the time of the accident, the title and registration to the vehicle were in Diane's name, and they had one insurance policy together covering all of the family's vehicles, including the subject vehicle.

The plaintiff subsequently served a notice for discovery and inspection on the defendant, seeking an executed authorization for all documentation in the possession of the subject vehicle's insurer relating to that vehicle and the accident. Thereafter, the plaintiff moved pursuant to CPLR 3124 to compel the defendant to produce the requested authorization. The defendant opposed the motion and cross-moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court granted that branch of the cross motion on the basis that the defendant made a prima facie showing that he was not the owner or operator of the subject vehicle, which the plaintiff failed to rebut. In addition, the court, among other things, denied the plaintiff's motion to compel discovery as academic. The plaintiff appeals.

"A certificate of title is prima facie evidence of ownership" ( Zegarowicz v. Ripatti, 77 A.D.3d 650, 653, 911 N.Y.S.2d 69 ; see Vehicle and Traffic Law §§ 128, 2101[g] ; 2108[c]; Dorizas v. Island Insulation Corp., 254 A.D.2d 246, 247, 678 N.Y.S.2d 388 ). However, this presumption may be rebutted by evidence demonstrating that another individual owns the subject vehicle (see Zegarowicz v. Ripatti, 77 A.D.3d at 653, 911 N.Y.S.2d 69 ; Spratt v. Sloan, 280 A.D.2d 465, 466, 720 N.Y.S.2d 173 ; Dickerson v. Diaz, 256 A.D.2d 435, 436, 681 N.Y.S.2d 605 ; Dorizas v. Island Insulation Corp., 254 A.D.2d at 247, 678 N.Y.S.2d 388 ; Young v. Seckler, 74 A.D.2d 155, 426 N.Y.S.2d 311 ). This may include evidence that a person other than the title holder exercised "dominion and control" over the vehicle ( RLI Ins. Co. v. Steely, 88 A.D.3d 975, 977, 932 N.Y.S.2d 80 ; see Terranova v. Waheed Brokerage, Inc., 78 A.D.3d 1040, 1040, 912 N.Y.S.2d 253 ; Estate of Zimmerman v. Mitsubishi Motors Credit of Am., Inc., 34 A.D.3d 628, 629, 824 N.Y.S.2d 667 ; Spratt v. Sloan, 280 A.D.2d at 466, 720 N.Y.S.2d 173 ; Young v. Seckler, 74 A.D.2d at 158, 426 N.Y.S.2d 311 ).

Here, documents from the insurer concerning the vehicle and...