MEMORANDUM DECISION AND ORDER I. Recitation in Accordance with CPLR §2219 [a]: The following papers, numbered via NYSCEF, to wit: 1-3, 8-15, 17, 22-26, and a New York County Criminal Court Felony Complaint with a New York County Criminal Court Criminal Disposition Report [People v. Cornelius, Docket No.: CR-011414-20NY], were read on this motion. Oral argument was heard at the courthouse on January 31, 2023. This is a Memorandum Decision and Order on Motion Sequence: #001 wherein Defendant KANIAYEV seeks an Order granting summary judgment in their favor. II. Relevant Facts This is an action for personal injuries allegedly sustained by Plaintiffs resulting from a motor vehicle accident occurring on or about June 11, 2020, in New York County, New York. Plaintiff BAJRAM DOMBALIC (a passenger of a vehicle driven by Plaintiff SAMUEL GARCIA1) is a resident of the County of Richmond, thereby conferring Richmond County as a proper venue. JAMES CORNELIUS, a resident of the County of Kings, City, and State of New York, is the driver and sole occupant of the vehicle that collided with Plaintiffs. Defendant CORNELIUS is alleged to have stolen a vehicle from Defendant YEVGENI KANIAYEV, a resident of the State of Virginia, County of Loudon, prior to the accident. The KANIAYEV vehicle was one of the two vehicles involved in the subject accident. The vehicle driven by Plaintiff SAMUEL GARCIA was owned and operated with implied consent, by the New York City Police Department, by The City of New York (hereinafter “the NYPD vehicle”). The City of New York and The New York City Police Department are not parties to this action. Plaintiffs DOMBALIC and GARCIA are alleged to be NYPD Police Officers acting within the scope, and furtherance of, their duties as police officers at the time of the accident. The Verified Complaint alleges that on or about June 11, 2020, at or about 213 Park Avenue South, in the County, City, and State of New York, that the Defendant JAMES CORNELIUS was operating a vehicle owned by Defendant KANIAYEV, inter alia, in a negligent manner and as a result, collided with the NYPD vehicle. Plaintiffs allege serious bodily injury because of the collision, and seek compensatory damages. The action was commenced on June 15, 2021, by filing and serving a Summons and Verified Complaint. An Affidavit of Service was filed by Plaintiff as to Defendant YEVGENI KANIAYEV on July 20, 2021, evincing the completion of service as to said Defendant on July 1, 2021. There is no indication that Defendant JAMES CORNELIUS was served with the Summons and Verified Complaint. There is no Affidavit of Service, nor is there an Affidavit of Attempted Service filed on NYSCEF as to Defendant CORNELIUS. Defendant KANIAYEV filed an Answer and Demand for Verified Bill of Particulars by his attorneys, on September 8, 2021, and issue was joined. A Verified Bill of Particulars was filed by Plaintiffs on October 31, 2022. The instant motion seeking an Order granting summary judgment to Defendant KANIAYEV was filed on November 14, 2022. The motion was adjourned (at the request of, and on the consent of Plaintiffs and Defendant KANIAYEV) to January 31, 2023 for oral argument. The court reviewed all the relevant papers in the court file on the motion prior to oral argument. While preparing for oral argument, the court was perplexed as to why Plaintiffs did not file either an Affidavit of Service or an Affidavit of Attempted Service with respect to Defendant CORNELIUS. The court made use of a court tool known as “New York Bench,” to determine whether Defendant CORNELIUS was incarcerated, as a potential explanation for the jurisdictional issues. The court found that Defendant CORNELIUS was charged in New York County with various crimes and violations resulting from his use and operation of the KANIAYEV vehicle and subsequent accident. The Defendant’s name, age, address, description, and arrest date on the criminal court documents all correspond to the facts as presented by Plaintiffs and Defendant KANIAYEV in their motion papers. The court obtained a copy of the Felony Complaint and the Criminal Disposition Report revealing the charges, and the corresponding charge dispositions in the case. The charges relevant to the issues in this motion are Penal Law §165.50, “Criminal Possession of Stolen Property in the Third Degree” and VTL §426 “Punishment for Making False Statement; Stolen Vehicles”, as Defendant KANIAYEV argues that the vehicle was stolen prior to the accident, thus seeking to rebut the presumption of permissive use under the Vehicle and Traffic Law. As to the disposition of charges for PL §165.50, and VTL §426, those charges were marked as “Dismissed (Motion to Dismiss Granted, Sealed 160.50).” The disposition date for both charges was listed as June 30, 2021, the same date that Defendant CORNELIUS pled guilty to VTL §1192.03 (Driving while intoxicated). CORNELIUS was sentenced to 364 days imprisonment subject to a Conditional Discharge. At oral argument, the court presented both counsel with the incidental findings and provided the parties with an opportunity to be heard on those facts, and any other relevant issues concerning Motion Sequence #001. The court reserved decision on the motion after oral argument. The court heard argument by the movant, and the Plaintiff opponents, and fielded multiple questions to counsel. To date, no discovery, other than the demand for and the exchange of, a Verified Bill of Particulars, has been made. Despite an aging 2021 Index Number in this action, there has not been a Preliminary Conference, although a request for same was only made recently. No depositions have been conducted or scheduled. This is a Memorandum Decision and Order on Motion Sequence: #001. III. Discussion A. Summary Judgment Standard “[T]he proponent of a summary judgment motion must make prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Laffey Fine Homes of New York, LLC v. 7 Cowpath, LLC, 210 AD3d 974 [2d Dept 2022] citing: Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Pursuant to CPLR 3212 (b), a court will grant a motion for summary judgment upon a determination that the movant’s papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Furthermore, all the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v. Dino & Artie’s Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). In this matter Defendant KANIAYEV submits the following in support of their motion, to wit: [1] Defendant KANIAYEV’s Answer denying Defendant CORNELIUS had permission to operate his vehicle, [2] Defendant KANIAYEV’s sworn affidavit acknowledging that on the date of the accident (June 11, 2020) he was the owner of the vehicle operated by CORNELIUS, and that the vehicle was stolen by Defendant CORNELIUS having been operated and involved in the accident without permission of Defendant KANIAYEV, [3] a copy of a complaint filed with the NYPD upon learning that his vehicle was stolen, and [4] a certified copy of the amended police report of the June 11, 2020 accident indicating that Defendant CORNELIUS was arrested for violating PL §155.30 [8] “Grand Larceny of a motor vehicle.”2 VTL §388 [1] provides that the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle, and it is presumed, that a vehicle is being operated with the owner’s consent and permission. However, “[e]vidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use” (Fuentes v. Virgil, 119 AD3d 522, 523 [2d Dept 2014]). Defendant KANIAYEV argues that the evidence propounded in support of the within motion, suffices to rebut the VTL’s presumption of permissive use, and they cite two relevant cases in support of that proposition. The first case cited is Vyrtle Trucking Corp v. Browne, (93 AD3d 716 [2d Dept 2012]) in which the Second Department reversed the trial court’s denial of Defendant’s motion for summary judgment, where there was evidence that the Defendant’s vehicle had been stolen prior to the accident with the Plaintiff’s vehicle. This case is distinguishable from the instant matter because the driver in Vyrtle was unknown, as they fled from the scene on foot, never apprehended, and therefore not prosecuted. It was clear to the Vyrtle court, based upon the documentary evidence, that the vehicle was in fact stolen. No further information or adjudication was produced or had on the issue. Therefore, the presumption of permissive use under the VTL was handily rebutted by Defendant. Here, the identity and whereabouts of the driver were indeed ascertained. The Defendant remained at the scene, injured, and was later treated for his injuries at Bellevue Hospital. Subsequently and within one day of the accident, the Defendant CORNELIUS was arrested on charges including but not limited to “Felony count of Criminal Possession of Stolen Property in the Third Degree” (PL §165.50) and VTL §426 “Punishment for Making False Statement; Stolen Vehicles.” Defendant movant references a First Department case decided in New York County Supreme Court entitled Khor v. Caesar (2019 WL5963203 Sup Ct NY County), wherein Defendant Caesar introduced sufficient evidence to rebut the presumption that Defendant Joseph was using the Toyota with Caesar’s permission. Specifically, Caesar submitted an Affidavit wherein he stated that the Toyota was stolen from Jean Pearson, and that he did not know the driver of the Toyota or give him permission to use the Toyota when the accident occurred. Additionally, Caesar attached a Stolen Vehicle Report and a Police Accident Report, both of which state that the Toyota was stolen before the accident. Plaintiff argued culpability on the part of Pearson, for inadvertently facilitating the theft of the vehicle by leaving the vehicle unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon. Without any additional information, the court deemed the presumption of permissive use rebutted by the evidence presented. In the instant case, there are facts that go beyond the snapshot in time of the accident, albeit discovered inadvertently by the court, thereby distinguishing the case, and raising a unique issue of fact which will be discussed at length in section B below entitled Judicially Noticed Dispositive Facts. Plaintiff argues that Defendant KANIAYEV’s motion should be denied for the following five [5] reasons, to wit: [1] the motion is premature as no discovery has been held, [2] negligence cases do not usually lend themselves to summary judgment, [3] the complaint report shows that the vehicle was reported stolen after the date of the incident on June 12, 2020, one day after the incident, [4] that the Defendant has failed to rebut the presumption of permissive use under the VTL, and [5] that the police report is inadmissible hearsay. At the outset, Plaintiff’s argument as to the issue presented under the VTL, that “negligence cases do not usually lend themselves to summary judgment” is a red herring. Although there once were significant limitations upon the type of action in which summary judgment was available (see Siegel, New York Practice, §280), this is no longer true (see CPLR §3212). Indeed, as of January 1, 1979, the final prohibition was removed, and it is now possible for a plaintiff to obtain summary judgment even in a matrimonial action (L.1978, ch. 532). That summary judgment is an available remedy in an appropriate negligence case has been accepted since 1959 (see 4 Weinstein-Korn-Miller, NY Civ Prac, par. 3212.03). Summary judgment has been termed a drastic measure, however, since it deprives a party of his day in court and will normally have res judicata effects (see Siegel, New York Practice, §287). Thus, it may be granted without a trial only if no genuine, triable issue of fact is presented (Byrd v. Hughes, 188 AD3d 975 [2d Dept 2020]; CPLR §3212, subds. (b), (c)). Although Plaintiff is correct that negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties agree as to the underlying facts, the very question of negligence is itself a question for jury determination. Here, the issue is not one of negligence, but as to whether the evidence presented on the motion is sufficient to rebut the presumption of permissive use of the KANIAYEV motor vehicle, thus relieving them of liability in this action. Plaintiff’s argument that [1]“the motion should fail as premature”, [2] that the vehicle was reported stolen one day after the accident, [3] that the Defendant failed to rebut the presumption of permissive use, and [4] that the police report is inadmissible hearsay, would all have failed in the absence of the documentary evidence inadvertently obtained by this court regarding the disposition of Defendant CORNELIUS’s criminal case. In fact, the Defendant’s reliance upon Khor v. Caesar (2019 WL5963203 Sup Ct NY County) would likely have been justified. Moreover, typically the argument that ‘the Defendant’s motion is premature’ would be without merit, as the Second Department has repeatedly maintained that the mere hope or speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion as premature (Leak v. Hybrid Cars, Ltd, 132 AD3d 958, 959 [2d Dept 2015]; Skura v. Wojtlowski, 165 AD3d 1196 [2d Dept 2018]). However, there are additional facts not originally contemplated by the parties, inadvertently discovered by the court, and presented to the parties at oral argument, providing them notice, and an opportunity to be heard. No applications were made for additional submissions, nor were any oral motions made by the parties at that time. The facts and the circumstances surrounding the discovery of (extrinsic, however referenced and related) facts are novel and are provided for in the following section of this Memorandum Decision and Order entitled Judicially Noticed Dispositive Facts. B. Judicially Noticed Dispositive Facts Judicial notice taken, sua sponte is frowned upon in our courts, particularly upon the conclusion of fact finding hearings, as doing so deprives the litigants of opportunity to challenge the accuracy and/or the relevancy of the judicially noticed facts (Billets v. Bush, 63 AD3d 1203, 1204 [3d Dept 2009] (error to take sua sponte judicial notice of prior orders after conclusion of fact-finding hearing); In re Dakota CC, 78 AD3d 1430, 1431, [3rd Dept 2010] (error to take judicial notice without affording party opportunity to challenge accuracy or relevancy “nor should the court have included allegations in the fact-finding decision that were not established during the hearing”); Matter of Justin EE., 153 AD2d 772, 774 [3rd Dept 1989], lv. denied (sua sponte judicial notice, taken after the conclusion of fact-finding hearing, “was inappropriate in that respondents had no opportunity to challenge either the accuracy or relevance of the judicially noticed facts.”)). The Second Department has long held that sua sponte judicial notice of the applicability of a statute of limitations is reversible error if that defense has not been raised” (352 Legion Funding Assoc v. 348 Riverdale, LLC, 164 AD3d 551, 552-53 [2d Dept 2018]). The instant matter is quite distinguishable from the aforementioned cases. Firstly, the sua sponte judicial notice taken by courts in the referenced cases, were made after fact-finding hearings were concluded, and there was a deprivation of due process as to the judicially noticed facts. The instant matter was before the court on a CPLR §3212 motion for summary judgment, and during oral argument, the court raised the judicially noticed issue(s) to counsel on the record in open court, affording them the opportunity to address the relevancy, and/or the veracity of the judicially noticed Felony Complaint and Criminal Disposition Report, and to make whatever applications they may have chosen to make. A motion for summary judgment may be analogized to a motion for directed verdict during trial. The issue before the court is whether, on the evidence presented, a reasonable fact finder could find one way or the other. This court routinely prepares for oral argument on motions, by reading all the papers, checking the citations of the parties, and by formulating questions for the parties on the facts and the law. Oral argument provides the parties with a chance to further explain their arguments, clarify points made in their papers, and provides an opportunity to pique the court’s intellectual curiosity by engaging in meaningful discussion of the facts, and the law, whether ordinary, complex, or novel. Oral argument also assuages the court’s concerns, and demonstrates the soundness of one’s position, by clarifying issues, as well as factual and legal points. Consequently, this court takes the process very seriously, and conscientiously prepares for same. This court did not go on a wild goose chase, or fishing expedition to find an issue of fact outside of the parties’ papers. The role of a Justice is to be a neutral arbiter, impartial and independent, swayed by neither personal predispositions, nor external pressure. It is certainly not the role of a Justice to advocate in behalf of a party, and this court is very careful to detail its process to ensure that the parties’ perception of the court’s role, and its actions taken herein, are indeed just and proper. The sua sponte judicial notice taken in this matter is based upon discovery of facts incident to a related prosecution, that was referenced in the motion papers by Plaintiffs and Defendant movant. The facts as to the court’s discovery of the judicially noticed and consequential facts to this motion are as follows: [I]n reviewing the file for oral argument, the court took notice that Defendant, CORNELIUS had not answered the Summons and Complaint, and that the court file was devoid of either an Affidavit of Service or an Affidavit of Attempted Service. Defendant KANIAYEV’s motion papers reference the arrest and prosecution of CORNELIUS in New York County Criminal Court. In anticipation of a default, the court postulated that CORNELIUS might be incarcerated as a result of the arrest and prosecution stemming from the facts in this case. If CORNELIUS was incarcerated, it would have served as an explanation for either the failure to serve process, and/or a reason why CORNELIUS, if served, had not yet answered the Summons and Complaint. One of the recent tools supplied to judges and justices by the New York State Office of Court Administration is called “New York Bench.” This computer program has many functions, but most relevant to the instant case, is the ability of the court to look up a case status, and or to view Criminal Court documents, including the Felony Complaint and Criminal Disposition Report in CORNELIUS’ matter. It is simple for any jurist with access, to procure the referenced information on “New York Bench” with the stroke of a few keys. The Court identified a Defendant having the same name, age, description, address, arrest date, NYPD Precinct, as detailed by Defendant KANIAYEV’s moving papers. The court obtained a copy of the Felony Complaint revealing the same facts, allegations and charges contained in the instant motion papers. The documents show that Defendant CORNELIUS was charged with PL §165.50 “Criminal Possession of Stolen Property in the Third Degree,” VTL §426 “Punishment for Making False Statement; Stolen Vehicles,” as well as other assorted vehicle and traffic law charges, that are not relevant to the VTL §388 issue of presumptive permissive use of a motor vehicle. Consequential to this courts decision on the within motion is information found on the Criminal Disposition Report, to wit: the “charge disposition” relating to the charges of PL §165.50 “Criminal Possession of Stolen Property in the Third Degree,” and VTL §426 “Punishment for Making False Statement; Stolen Vehicles.” The disposition as to those charges indicate that they were “Dismissed (Motion to Dismiss Granted)”, and that they are to be sealed pursuant to PL §160.50 which provides for the sealing of a charge upon the full and final disposition of the case. There can be no dispute that the value of a full and final adjudication on the merits (on a motion to dismiss), has greater evidentiary value than a police report, and therefore the court deemed this information to be consequential and worthy of judicial notice. Upon the incidental discovery of this consequential information, the court provided the information to both appearing counsel on the record during oral argument, providing the parties with an opportunity to address the relevancy, veracity, and/or application of the judicially noticed facts on Defendant’s CPLR §3212 motion that was before the court. Counsel participated in a spirited discussion on the facts and the law, including the judicially noticed information, and the court reserved decision on the motion. This court is quite sensitive to the notion that it should not take judicial notice of any court-generated document without affording the parties an opportunity to be heard on whether notice should be taken, and, if so, the significance of its content” (see Caffrey v. North Arrow Abstract & Settlement Servs, Inc, 160 AD3d 121 [2d Dept 2018] [emphasis added]). This court had in mind at the time of oral argument Justice Dillon’s axiomatic and cautionary explanation, to wit: “The obvious reason for Caffrey’s perspicacious caution in taking judicial notice is the basic notion of due process that is owed to parties.” Therefore, the court spread forth the information on the record, and engaged counsel with discussion on the record. But for Defendant KANIAYEV’s necessary reference to the arrest, and prosecution of CORNELIUS, coupled with Plaintiffs’ failure to file an affidavit regarding either the service of process or attempted service of process upon CORNELIUS; this court would not have discovered the crucial information as to the disposition of relevant criminal charges. Upon discovery, the court could not, in the interests of justice, feign ignorance as to these indelible facts. A bell once rung, cannot be un-rung. Defendant KANIAYEV’s submission of an affidavit under oath that their vehicle was stolen, along with certified police and accident reports, show that Defendant CORNELIUS was arrested. This information does lend some credence to their allegation that the vehicle was stolen prior to the accident. Ordinarily, this would be enough for a Defendant to rebut the presumption of permissive use. However, this court’s incidental discovery of the dismissal of all relevant charges KANIAYEV relies upon to rebut the presumption of permissive use, raises an issue of fact, worthy, at the very least, of discovery. IV. Conclusion Consequently, Defendant KANIAYEV’s motion for summary judgment is DENIED without prejudice to renew upon the completion of discovery. V. Decretal Paragraphs It is hereby ORDERED, that Defendant KANIAYEV’s motion seeking an Order granting summary judgment to Defendant YEVGENI KANIAYEV, pursuant to CPLR §3212, and for such other and further relief as the court deems just and proper, is DENIED without prejudice to renew upon the completion of discovery, and it is further, ORDERED, that the clerk of the court shall enter judgment accordingly. Any relief requested and not expressly addressed by the court is DENIED. This shall constitute the Decision and Order of the court. Dated: February 3, 2023
