FILED: KINGS COUNTY CLERK 03/14/ :00 AM INDEX NO /2017 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/14/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X LANCER INSURANCE COMPANY a/s/o Index No.: /2017 KIM WILLIAMS Plaintiffs, Affirmation -against- GENERAL MOTORS INC AND KRISTAL AUTO MALL CORP, X Defendants. ADAM KALISH, an attorney duly admitted to practice law in the State of New York, affirms the following under penalty of perjury: 1. I am an attorney duly licensed to practice law before the Courts of the State of New York and am the owner of the Law Firm of Adam Kalish P.C. attorney for the defendant Kristal Auto Mall and as such am fully familiar with the facts and circumstances heretofore has herein. 2. I submit this affirmation in support of Kristal Auto Malls motion to dismiss the Plaintiff complaint for failure to state a cause of action upon documentary evidence pursuant CPLR 3211(a)(1) and (7) and for a default judgment against GM on Kristal Auto Malls cross claims. 3. In the complaint, plaintiff asserts four causes of action and they are negligence, breach of warranty, designed defect, and res ipsa loquitur. The complaint alleges that Kristal Auto is liable for the damages sought as the retailer. Plaintiff seeks recovery of monies paid to its insured for property damage sustained to a vehicle owned by Ms. Williams and insured by Plaintiff. 1 of 6

2 4. Even taking everything alleged in the complaint as true, Kristal Auto motion to dismiss must be granted. All negligence-based claims must be dismissed because it is well settled that a plaintiff cannot bring a tort-based claims for damages to property when no personal injury was sustained. Plaintiff breach of warranty claims must also be dismissed as Plaintiff as failed to state a cause of action as matter of law. PROCEDURAL HISTORY 5. Plaintiff, as subrogee of Kim Williams commenced this action through the filing of a summons and complaint on or about February 17, A copy is attached as exhibit A. 6. Plaintiff allegedly served General Motors with the summons and complaint personally on March 7, Plaintiff allegedly served Kristal Auto Mall with the summons and complaint personally on March 8, Kristal Auto Mall filed its answer with cross claims against defendant General Motors on March 20, General Motors accepted service by E-file by then E-filing its pre-answer motion to dismiss on March 27, 2017, in the motion, Co-defendant also failed to move to dismiss the cross claims. RELEVANT FACTUAL BACKGROUND 2 of 6

3 10. Plaintiff alleges that on or about June 17, 2016 a fire was caused to ignite in the subject 2015 Cadillac Escalade ESV Luxury owned by Ms. Williams and operated by her husband Jean Tilus. No purchase agreement was attached to the complaint. 11. The complaint alleges that the vehicle was insured by plaintiff on June 17, 2016 and that it paid its insured, Ms. Williams $85, for the property damage sustained. 12. Plaintiff does not allege any personal injuries as a result of this incident. Rather Plaintiff only seeks reimbursement of the $85, it paid to its insured. ARGUMENT I. THE ECONOMIC LOSS RULE BARS PLAINTIFF TORT BASED CAUSES OF ACTION 13. Under New York's economic loss rule, a purchaser may not recover in tort for damages to the property which a plaintiff claims were defective and where personal injury is not alleged. 14. Here, as noted above, Plaintiff complaint on its face asserts that an alleged defect in Plaintiff vehicle caused damage to the product. This claim falls squarely within the forbidden class of actions seeking recovery for damage to an allegedly defective product itself. Accordingly, it is respectfully requested that the court dismiss the cause of action for negligence and strict products liability. 15. The fourth cause of action asserting the Res Ipsa Loquitur doctrine must also be dismissed. The doctrine of Res Ipsa Loquitur is tort based and permits the of of an accident inference negligence to be drawn solely from the happening 3 of 6

4 resulting in injuries when the required elements are satisfied. Since there is no injury asserted in this action, the doctrine is inapplicable. 16. Further, the complaint fails to set forth a cause of action for Res Ipsa Loquitur because plaintiff has failed to plea the required elements of the doctrine. For the Res Ipsa Loquitur doctrine to apply, all three elements must be satisfied, and they are that (1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary actions or contributions on the part of the Plaintiff. 17. Here, the second element of the doctrine cannot be met as the subject vehicle was not in Kristal Motors exclusive control for over two years prior to the date of the incident. Pursuant to the sale documents provided by Plaintiff, she purchased the vehicle in August Further based on the sworn statement of the husband, he had the neighbor jump the vehicle early that day. 19. Consequently, as all three elements of the Res Ispa Loquitur doctrine must be satisfied, the Complaint fails to state a cause of action for Res Ipsa Loquitur since Plaintiff cannot allege that Kristal Auto was in exclusive control over the mechanism that cause the injury based upon documents it provided and the sworn statements. 20. Therefore, Kristal is entitled to dismissal of Plaintiff first, second, and fourth cause of action. 4 of 6

5 PLAINTIFF BREACH OF WARRANT CAUSES OF ACTION MUST BE DISMISSED 21. The complaint appears to allege that Kristal Auto breached both their expressed and implied warranty owed to the Plaintiff. 22. However, to state a cause of action for breach of an express warranty, the complaint must set forth the terms of the warranty relied on by the Plaintiff when purchasing the product; the plaintiffs compliance with the warranty conditions; the defendant breach of the warranty and the recoverable damages. 23. Since no express warranty was attached to the complaint, it fails to state a cause of action for express warranty necessitating dismissal for said claim. 24. The limited six year and or 70, mile warranty is with Cadillac Auto, not with Kristal Auto. Moreover, Plaintiff fails to show that the attached warranty applied to the subject vehicle, Kristal Auto, that the subject vehicle was covered by any express warranty. 25. Further, the complaints fails to allege that Plaintiff was aware of the express warranty and that the Plaintiff was in compliance with the warranty. 26. With regards to Implied Warranty, any cause of action for breach of implied warranty against Kristal must be dismissed. A cause of action based upon breach of an implied warranty does not exist where there is no seller-buyer relationship or sales contract between the parties and the plaintiff is not an injured person. Hole v. General Motors Corp.,., 83 AD2d 715, 716. Here, it is undisputed that the subject vehicle did not cause Ms. Williams, or anyone else, physical injury and this is solely 5 of 6

6 a claim for property damage. Plaintiff, therefore, has failed to state a cause of action based upon the alleged breach of implied warranty of merchantability. DEFAULT JUDGMENT FOR KRISTAL CROSS CLAIMS 27. Kristal E-filed its Answer with Cross Claims on March 20, Defendant consented to E-File service with its E-filed Notice of Motion to Dismiss the Plaintiff complaint on March 27, Defendant has failed to file an answer on Kristal's cross claims or move to dismiss the cross claims and the time to do so has not been extended. 30. Co-defendant is not an infant, incompetent, mentally ill or an absentee. 31. The cross claims have not been amended. 32. No prior application has been made. 33. GM is not in the military or relies on income from the Military. WHEREFORE, Plaintiff respectfully requests that the relief demanded in the annexed Order be in all respects granted, together with such other and further relief as the Court deem just, equitable and proper. d hm (Al/}Â The Law Firm Of Adam Kalish P.C. Adam Kalish Esq Flatlands Ave Brooklyn, New York of 6