Opinion
17520 Index No. 29973/20 Case No. 2022–00597
03-16-2023
Victor C. PACHECO et al., Plaintiffs–Respondents, v. Francisco JABALERA, Defendant–Appellant, Tomasz Chorostecki et al., Defendants–Respondents, Luis Santos Jr., Defendant.
McCabe, Collins McGeough, Flower, Levine & Nogan LLP, Jericho (James M. Hayes of counsel), for appellant.
McCabe, Collins McGeough, Flower, Levine & Nogan LLP, Jericho (James M. Hayes of counsel), for appellant.
Friedman, J.P., Gonza´lez, Kennedy, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered on or about January 14, 2022, which denied defendant Francisco Jabalera's motion to dismiss the complaint pursuant to CPLR 3211(a)(1), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiffs commenced this action to recover damages for injuries sustained in a motor vehicle accident. In the complaint, plaintiffs alleged that each named defendant was an owner of the vehicle. Defendant Jabalera denied that allegation. Defendants Tomasz Chorostecki and Chorostecki Auto Group, LLC (together, Chorostecki defendants), did not deny that allegation. The motion court improvidently exercised its discretion in converting Jabalera's CPLR 3211 motion to one for summary judgment. CPLR 3211(c) empowers the court to convert a 3211 motion to one for summary judgment, but only after adequate notice to the parties. The motion court provided no notice to the parties. Moreover, none of the exceptions to the notice requirement apply here (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320, 515 N.Y.S.2d 1 [1st Dept. 1987] ). Nevertheless, we consider the merits, as the motion is, in effect, one for summary judgment although denominated as a CPLR 3211 motion ( CPLR 5501[c] ). In their answer, the Chorostecki defendants’ failure to deny the allegations that they are owners of the vehicle, are formal judicial admissions, and are deemed admitted (see Matter of Driver, 117 A.D.2d 224, 226, 502 N.Y.S.2d 18 [1st Dept. 1986] ). Moreover, Jabalera's submissions demonstrate that he was not the owner of the vehicle at the time of the accident. In opposition, plaintiffs have failed to demonstrate that any facts exist as to the ownership of the vehicle that require further discovery on this issue (see Bailey v. New York City Tr. Auth., 270 A.D.2d 156, 157, 704 N.Y.S.2d 582 [1st Dept. 2000] ). We note that the Chorostecki defendants do not oppose the appeal. Accordingly, the complaint and cross claims are dismissed as against Jabalera.