Opinion
No. 6279/13.
11-02-2016
Michele WEIL as Administratrix of the Estate of Christopher Mannino, deceased, Plaintiff(s) v. Brian ANDRESKI, Warren Andreski, Carol Andreski, Richard J. Leigh and Richard P. Leigh, B.C.M. Fish Ltd, d/b/a Matthew's Seafood House, Jennifer Ann Moritz, Sullott Corp. d/b/a Albatross and James S. Mallott, Defendant(s).
Sullivan Papain Block McGrath Cannavo, PC by John F. Nash, Esq., Garden City, attorneys for plaintiff. Lewis Johs Avallone Aviles, LLP by Brian F. Lewis, Esq., Islandia, attorneys for defendants, Warren and Carol Andreski. Brian Andreski, defendant pro se.
Sullivan Papain Block McGrath Cannavo, PC by John F. Nash, Esq., Garden City, attorneys for plaintiff.
Lewis Johs Avallone Aviles, LLP by Brian F. Lewis, Esq., Islandia, attorneys for defendants, Warren and Carol Andreski.
Brian Andreski, defendant pro se.
ANDREW G. TARANTINO JR., J.
Upon consideration of the motion by defendants Warren Andreski and Carol Andreski for summary judgment dismissing the complaint against them, the supporting affirmation and exhibits, (sequence 005), plaintiff's affirmation in opposition to the motion and exhibits, and said defendants' reply affirmation in support of their motion, it is now
ORDERED that the motion by defendants Warren Andreski and Carol Andreski for granting summary judgment in their favor dismissing the complaint as asserted against them is granted.
The subject accident occurred on June 23, 2012 at abouty 4:50 a.m. in the Great South Bay near West Islip, New York when a 24' Douglas Skater boat operated by defendant Brian Andreski, the son of Warren and Carol, collided with a 34' Hatteras Sports Fisherman boat, named M/Y Silver Bullet. The Hatteras was operated by defendant Richard P. Leigh, and as a result of the collision Christopher Mannino died. Brian Andreski pleaded guilty to aggravated vehicular homicide, vehicular manslaughter in the second degree, and is currently serving his sentence.
Plaintiff Michele Weil, as Administratrix of the Estate of Christopher Mannino, commenced this wrongful death action against defendants including Brian's parents, Warren Andreski and Carol Andreski. Plaintiff alleges that although Mr. Andreski and Mrs. Andreski are a nontitle holder of the Douglas Skater boat, they had a possessory interest in the boat by exercising dominion and control over the boat.
Warren Andreski and Carol Andreski move for summary judgment dismissing the complaint as asserted against them on the grounds that they were not liable to the plaintiff because they did not own, control or operate the subject boat at the time of the accident. In support, movants submit, inter alia, the pleadings, the transcripts of the deposition testimony of plaintiff Carol Andreski and Warren Andreski, and copies of a certificate of title and a boat registration card for the subject boat. In deciding the instant motion, the Court has not been affected by sympathy for any of the parties.
At her deposition, Carol Andreski testified that she was not involved in the purchase of the subject boat. After she learned that her son, Brian, was traveling cross-country to Texas with cash to purchase the boat, she offered to provide him a check with which to travel. Brian gave her cash in the amount of $17,000.00, together with a check in some amount that she did not remember. Brian gave his mother the money and she, in return, provided Brian with a certified check from her account. Mrs. Andreski testified that Brian then purchased the boat and trailer in Texas and towed them to Brian's and their house in Spring 2011. She denied ever maintaining or repairing the boat, and denied ever having paid to maintain or repair of the boat.
Warren Andreski testified that he also suggested to Brian that he should take a bank check rather than cash to purchase the boat. Warren Andreski testified that he neither maintained or repaired the subject boat, and that he never paid for maintenance nor repair of the boat. He also testified that he has never owned the boat and that the boat has never been registered to him or his wife.
Brian Andreski testified that his parents, Warren and Carol Andreski, provided him with a cashier's check only after he gave them the $21,500.00 in connection with the purchase of the boat. Since the time he returned from Texas with the boat to his and his parents' house, his parents never paid any maintenance or repair of the boat.
It is undisputed that the certificate of title listed Brian Andreski as the sole owner of the subject boat and was issued on April 27, 2011, more than a year before the collision. The boat registration card, issued on June 19, 2011, listed Brian Andreski as the sole owner of the subject boat.
While a certificate of title is prima facie evidence of ownership (see RLI Ins. Co. v. Steely, 88 AD3d 975, 932 N.Y.S.2d 80 [2d Dept 2011] ; Zegarowicz v. Ripatti, 77 AD3d 650, 653, 911 N.Y.S.2d 69 [2d Dept 2010] ; Dobson v. Gioia, 39 AD3d 995, 998, 834 N.Y.S.2d 356 [3d Dept 2007] ), the certificate may be rebutted by evidence that a nontitle holder had a possessory interest in the property with its attendant characteristics of dominion and control (see Terranova v.. Waheed Brokerage, Inc., 78 AD3d 1040, 1040, 912 N.Y.S.2d 253 [2d Dept 2010] ; Dobson v. Gioia, supra; Spratt v. Sloan, 280 A.D.2d 465, 466, 720 N.Y.S.2d 173 [2d Dept 2001] ; Matter of Vergari v. Kraisky, 120 A.D.2d 739, 740, 502 N.Y.S.2d 788 [2d Dept 1986] ).
Here, Warren Andreski and Carol Andreski established their entitlement to judgment as a matter of law by demonstrating that a certificate of title and a boat registration card for the subject boat listed Brian Andreski as the sole owner of the boat more than a year prior to the subject accident and that the title and registration have not been changed. Movants also made a prima facie showing that they had no dominion and control over the boat.
In opposition, plaintiff contends that there is an issue of fact as to whether Warren Andreski and Carol Andreski had a possessory interest in the boat by exercising dominion and control over the boat. However, plaintiff has not submitted any contrary evidence. Plaintiff alleges that the following evidence raises a triable issue of fact to rebut the presumption of ownership created by the certificate of title;
First, that the boat was purchased with a check drawn on the movants' account;
Second, that Brian Andreski fraudulently registered the boat with the State of New York with a reduced purchase price; and
Third, that the boat was stored in the movants' premises without a charge.
The Court finds that plaintiff's evidence was insufficient to rebut the presumption of ownership;
First, merely providing a check to Brian so that he did not travel 1,500 miles to Texas with $21,500 cash in his pocket does not establish dominion or control over the boat;
Second, Warren and Carol Andreski cannot be held responsible if in fact Brian filed a bill of sale with a lesser amount to avoid taxes, and clearly does not establish Warren or Carol Andreski's dominion or control over the boat; and
Third, Brian resided at the same house as his parents and whether Warren and Carol Andreski did or did not charge Brian "rent" was a family matter, and not does not establish Warren or Carol Andreski's dominion or control over the boat.
Plaintiff in opposition to this motion relied on Dobson v. Gioia, supra [a nontitle holder, who was a de facto owner of the boat, exercised exclusive dominion and control over the boat, including acting as the primary operator, paying for all repairs and maintenance, and determining who had permission to operate it]. This Court finds that the facts in this case are inapposite to the facts in Dobson and that, as such, Warren and Carol Andreski were not de facto owners of the boat. Further, there is no evidence that either Warren Andreski or Carol Andreski has operated the boat. The Court has examined the movants' other claims and considers them to be without merit.
The Court cannot be affected by sympathy for any of the parties, what the reaction of the parties to the Court's decision may be, or whether the decision will please or displease anyone. The Court is aware of the emotional impact this case has on all the parties involved, including the loss of a father and the children he left behind. However, based upon the facts and circumstances herein, the motion by defendants Warren Andreski and Carol Andreski for granting summary judgment in their favor dismissing the complaint as asserted against them is granted.