u./ Plaintiff SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Acting Justice Supreme Court

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1 SHORT FORM ORDER u./ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Acting Justice Supreme Court x RETINA FILS-AIME, -against- Plaintiff TRIAL PART: 50 INDEX NO. :018821/01 ACTION NO. MOTION DA TE:9-26- SUBMIT DATE: SEQ. NUMBER RYDER TRS, INC., MAT HEW D. VERMILYEA, CRISTOFARO SCACCIA, MARIO A. SCACCIA, ERIC Y. DUNST, and SIMMIE DUNST, CORNELL UNIVERSITY, INTEGRAMED AMERICA, INC., MPD MEDICAL ASSOCIATES OF NEW YORK and REPRODUCTIVE SPECIALISTS OF NEW YORK, LLP, Defendants x MAGDA JACHOWICZ, an infant, by MACIEJ JACHOWICZ, as parent and natural guardian, HANNA JACHOWICZ, an infant, by MACIEJ JACHOWICZ, as parent and natural guardian and MACIEJ JACHOWICZ, Individually, Plaintiffs ACTION NO. -against- INDEX NO. 2635/02 MATTHEW D. VERMILYEA, RYDER, TRS., INC., CRISTOFARO SCACCIA, MARIO A. SCACCIA, ERIC Y. DUNST and SIMMIE DUNST BETINA FILS-AIME, CORNELL UNIVERSITY, INTEGRAMED AMERICA, INC., MPD MEDICAL ASSOCIATES, OF NEW YORK, and REPRODUCTIVE SPECIALISTS OF NEW YORK, LLP, Defendants x

2 MATTHEWD. VERMILYEA Third-Party Plaintiff, -against- THIRD-PARTY ACTION CORNELL UNIVERSITY and UNITED EDUCATORS INSURANCE RISK RETENTION GROUP, INC. Third-Party Defendants, x The following papers have been read on this motion: Notice of Motion, dated (Affs in support and exhibits separately bound) Memorandum of Law in Support, dated Affirmation in Opposition, dated Affirmation in Opposition, dated Affirmation in Opposition, dated Affirmation in Opposition, dated Reply Affidavit, dated Upon the foregoing papers it is ordered that this motion by defendant and third-part defendant Cornell University to renew it motions for summary judgment and to dismiss denied by orders dated September 6, 2005 and Januar is denied. This is the twentieth (20 ) motion made in this matter, and the background of these related cases as set forth in the prior orders of the Court wil not be repeated here. By order dated September 6, 2005 the Court (Roberto, J.) denied Cornell' s motion for summary judgment dismissing the actions against it, on the ground that an issue of fact existed with regard to an agency relationship between the central defendant actor in the accident, defendant Matthew D. VerMilyea, and Cornell, where he was a student. By order dated January 11, 2006 the undersigned denied Cornell' s motion to dismiss Vermilyea s third-part complaint seeking defense and indemnification under a written

3 Cornell policy concerning volunteers, based upon an interpretation of such policy and relevant New York law. Cornell now seeks renewal of both motions, or, with regard to the third-part complaint, summary judgment. Renewal is sought based upon discovery conducted after both of the foregoing decisions were rendered, most notably a further deposition of V ermilyea directed by way of a separate order. The Court finds that Cornell has satisfied the requirement ofcplr 2221 that calls on a movant for renewal to offer a reasonable justification for the failure to present facts on the prior motions (CPLR 222 I (e)(3)). Relatedly, the Court also finds that the branch of Cornell' s motion that is addressed to the September 6, 2005 order is properly made, even if seen as a second summary judgment motion, and does not offend the successive summary judgment motion " rule (see, Sansol Indus. Inc. v 345 East 56 Street Owners, Inc. 276 AD2d 370 (2000)). Nor does that branch addressed to the January II 2006 order violate the "single motion" rule found in CPLR 3211(e). The analysis of a motion to renew does not change even in the context of a pre-answer motion to dismiss (see Blume R Fuels, Inc. 32 AD3d 811 (2006)). In any event, once an answer has been interposed the denial of a motion to dismiss does not preclude a motion for summary judgment on similar grounds, the alternative relief sought here with regard to the third-part complaint (see Siegel, New York Practice, at 454 (4th Ed. Nevertheless, Cornell has been unable to demonstrate that the new evidence would change the result of either motion, and the motion is therefore denied (CPLR 2221 (e )(2)). That branch that is directed to the September 6, 2005 order cannot be granted under the well-established rules for evaluation of the proof submitted to the Court on a motion for

4 summary judgement. On such a motion the court must draw all reasonable inferences in favor ofthe nonmoving Tedlen Realty Corp. part (Nicklas 305 AD2d 385 (2003); Rizzo v. Lincoln Diner Corp., 215 AD2d 546 (1995)). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibilty, but simply to determine whether such issues of fact requiring a trial exist (Dyckman Barrett 187 AD2d 553 (1992); Barr County of Albany, 50 NY2d 247, 254 (1980); James v. Albank 307 AD2d 1024 (2003); Heller v. Hicks Nurseries Inc., 198 AD2d 330 (1993)). The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned (Sexstone v. Amato 8 AD3d 1116 (2004)). Essentially, and as is made clear in its Memorandum of Law, Cornell argues that VerMilyea s affidavit in opposition to its original motion has been proved " patently false by subsequent disclosure, and the Court' s finding that an issue of fact regarding his agency for Cornell therefore should change. More specifically, it claims that VerMilyea subsequent testimony, a deposition of a summer job supervisor, Eva Johnson, and the affidavit of new witness, Wayne Caswell, a co-worker at VerMilyea s summer job, establish that at the time of the accident "VerMilyea was in complete control of all aspects of the transportation of the donated equipment, not Cornell, and VerMilyea had not even disclosed to Cornell (or, for that matter, to the court) that what he was actually doing at the time of the accident had nothing whatsoever to do with Cornell" (Memorandum of Law, at 2). The Court cannot agree. Cornell asserts that VerMilyea failed to disclose that he was attending to purely personal business and was not en route to Cornell when the accident

5 occurred. 1 It contends that these factors, combined with s to and from Cornell faculty, demonstrate that the planning and execution of the entire laboratory equipment delivery project was beyond Cornell' s control, and that the truck was not even being used for its benefit when the accident occurred. However, upon a review of the Caswell affidavit, the portions of the Johnson EBT and the further EBT of VerMilyea as relied upon by Cornell and the opposing proof, including that submitted in opposition to the original motion, and a new affidavit from VerMilyea himself (in which inter alia, he stands by his initial statement and provides alternative explanations for the factors cited by Cornell), the Court finds that issues of fact regarding his agency stil remain. The Court simply cannot find, as a matter oflaw, that the new evidence regarding his interactions with Cornell faculty serves to "completely contradict" his prior statement such that the latter should be disregarded as a basis for the key finding that an agency relationship may have existed (cf, Gantt County of Nassau 234 AD2d 338 (1996)). Relatedly, the additional information about the events leading up to the accident do no more than present issues of fact regarding whose interests were being served that day. Deviations from Cornell' s interests (including deviations from a direct route) during the course of the attempted delivery would not necessarily vitiate an agency relationship in any event (see Maurilo Park Slope V-Haul, 194 AD2d 142, 147 (1993)). To the extent that some of the new evidence presented by Cornell calls into question VerMilyea s veracity or forthrightness the same affects his credibilty, which is a matter for the finder of fact, not the Court (Barr 1 Among other things, Cornell presents proof that VerMilyea was going to deliver a granite table top to Caswell, was to pick up and transport his college roommate to Cornell, and that his direction of travel at the time of the accident was away from Cornell.

6 v County of Albany, supra). Finally, that branch of the motion to renew that is directed to the January order sustaining the third-part complaint cannot be granted. For much the same reason as is stated above, the new evidence presented does not provide a basis for changing the Court' initial finding that Cornell had failed to "utterly refute" VerMilyea s claim that he was a volunteer entitled to a defense and indemnification under the relevant Cornell policy (see Goshen Mutual Life Ins. Co. of N. Y., 98 NY2d 314, 326 (2002)). Under these circumstances, Cornell also has not shown that VerMilyea s third-part complaint fails to state a cause of action under New York law (CPLR 3211(a)(7)). The alternative relief of summary judgment is therefore also denied. The foregoing constitutes the Decision and Order of the Court. ENTER DATED: November fb6? TO: Milber Makris Plousadis & Seiden, LLP By: Susan J. Stromberg HON. DANIEL PALMIERI Acting Supreme Court Justice Attorneys Third- Party Defendant CO United Educators Insurance Risk Retention Group, Inc Woodbury Road, Ste. 402 Woodbury, NY ENTERED NaV NAi6 \U COUNTY ClmK S o efi

7 Of Counsel Thomas S. Schaufelberger, Esq. Paul A. Fitzsimmons, Esq. Wright, Robinson, Osthimer & Tatum 5335 Wisconsin Avenue, N.W., Suite 920 Washington, D. C Law Office of James E. Toner Attorney for Plaintiff Fils-Aime 114 Old Country Road, Ste. 630 Mineola, NY Norma W. Schwab, Esq. Attorneys for Cornell University Cornell University 300 CCC Building, Garden Avenue Ithaca, NY Wiliam F. Gormley, Esq. Connor, O' Connor, Hintz & Deveney LLP Attorneys for Defendant Matthew D. Vermilyea One Huntington Quadrangle, Ste. C07 Melvile, NY Thomas C. Awad, Esq. John T. Ryan & Associates Attorneys for Defendant Integramed America, Inc. One Hollow Lane, Ste. 316 Lake Success, NY Peter Graff, Esq. Martin, Fallon & Mulle, Esqs. Attorneys for Defendant/Third Party Plaintiffs- Eric Y. Dunst and Simmie Dunst 100 East Carver Street Huntington, NY Charles Leibowitz, Esq. Law Offices of Robert P. Tusa Attorneys for Plaintiff on the Counter claim- Maciej Jachowicz 1225 Franklin Avenue, Ste. 500 Garden City, NY 11530

8 Thomas J. McGowan, Esq. Meltzer, Lippe, Goldstein & Breitsone, LLP Attorneys for MPD Medical Associates, P.C. d/b/a Reproductive Science Assoc. Of New York and Reproductive Specialists of New York 190 Wilis Avenue Mineola, NY Anthony J. Montiglio, Esq. 300 Old Country Road Mineola, NY Jason Nardiello, Esq. Donohoe, McGahan & Catalano, Esqs. Attorneys for Plaintiff action 2 - Magda, Hanna and Maciej Jachowicz 555 North Broadway O. Box 350 Jericho, NY Thomas Pannettieri, Esq. Scott Baron & Associates, P. Attorneys for Dunst Action No Cross Bay Boulevard Howard Beach, NY Merle Schrager, Esq. Hammil, O'Brien, Croutier, Dempsey & Pender, P. Attorneys for Defendants - Cristofaro & Mario A. Scaccia 138 Mineola Blvd, Box 351 Mineola, NY Michael V. Scalafani, Esq. Reardon & Scalafani, P. Attorneys for Defendant - Ryder Trs., Inc. 220 White Plains Road, Ste. 235 Tarrytown, NY Isserlis & Sullvan, Esqs. Attorneys for Defendant Betina J. Fils-Aime on Counterclaim 999 Stewart Avenue Bethpage, NY 11714