NELYS HERNANDEZ VS. RUTH OTLES GIUSEPPE SCATURRO VS. RUTH OTLES (L-2476-16, UNION COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-5312-17T1
A-5314-17T1
NELYS HERNANDEZ,
Plaintiff-Appellant,
v.
RUTH OTLES,
Defendant-Respondent.
_________________________
GIUSEPPE SCATURRO,
Plaintiff-Appellant,
v.
RUTH OTLES,
Defendant-Respondent.
_________________________
Submitted October 21, 2019 – Decided December 9, 2019
Before Judges Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2476-16.
Jorge Cruz, attorney for appellants.
Chasan Lamparello Mallon & Cappuzzo, PC, attorneys
for respondent (Ryan J. Gaffney, of counsel and on the
brief).
PER CURIAM
Plaintiff Giuseppe Scaturro was driving a motor vehicle, with plaintiff
Nelys Hernandez as a front seat passenger, that was rear-ended by defendant
Ruth Otles's vehicle. Defendant was not in her vehicle, which was driven by
Sen Turan. The Law Division granted defendant's summary judgment motion
to dismiss plaintiffs' personal injury complaints arising from the accident based
upon the undisputed fact that Turan was not defendant's agent when the accident
occurred, and, therefore, defendant could not be liable for plaintiffs' injuries
under the theory of agency. Because we agree with the motion judge's
application of the law to the facts, we affirm.
I.
As this is an appeal from a summary judgment motion order granted to
defendant, our recitation of the facts is derived from the evidence submitted by
the parties in support of, and in opposition to, the motion, viewed in the light
most favorable to plaintiffs, and giving plaintiffs the benefit of all favorable
A-5312-17T1
2
inferences. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013).
(citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)).
Following the motor vehicle accident, plaintiffs, represented by the same
counsel, filed separate complaints against defendant alleging she was negligent
in driving her vehicle into their vehicle. Plaintiffs did not sue Turan, and
defendant did not bring him into the actions as a third-party defendant. The two
complaints were later consolidated on defendant's motion.
During discovery, defendant provided interrogatory answers certifying
that Turan was the driver of her vehicle and she was not in the vehicle when the
accident occurred. She stated her husband, without her knowledge, allowed
Turan to use her vehicle to go shopping. She attached to her interrogatory
answers a copy of the police accident report identifying Turan as the driver of
defendant's vehicle that rear-ended plaintiffs' vehicle.
Defendant moved for summary judgment supported by her statement of
material facts that Turan was not driving her vehicle as her agent at the time of
the accident as set forth in her attached interrogatory answers and affidavit of
no agency. On the day oral argument was scheduled, defendant's counsel
mistakenly believed disposition was on the papers and did not attend. Both
parties consequently waived oral argument and consented to disposition on the
A-5312-17T1
3
briefs. Judge Mark P. Ciarrocca issued an order and oral decision granting
summary judgment for defendant.
Judge Ciarrocca initially noted plaintiffs' opposition to the summary
judgment motion was filed late and was non-compliant. Nonetheless, the judge
addressed the merits of the motion by applying the well-known summary
judgment standard under Rule 4:46-2(c) and Brill.
In accordance with Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div.
1970), Judge Ciarrocca held "the use of a . . . vehicle upon a public roadway by
one who is not the owner raises a presumption of agency between the owner and
the owner, but that can be rebutted by the defendant[-]owner." Further, the
judge cited our ruling in U.S. Pipe & Foundry Co. v. American Arbitration
Ass'n, 67 N.J. Super. 384, 400 (App. Div. 1961), that "bare conclusions in the
pleadings without factual support in tendered affidavits will not defeat a
meritorious application."
Applying these principles, Judge Ciarrocca determined defendant rebutted
the presumption that Turan was driving defendant's vehicle as her agent through
her motion's statement of material facts, which cited to her interrogatory answers
and affidavit. The judge held plaintiffs' opposition failed to "deny any of . . .
defendant's statement . . . of material fact" or "offer any evidence . . . to rebut
A-5312-17T1
4
[defendant's] statements that [Turan] was not acting as [defendant's] agent,
servant, or employee." Simply stating "[t]he non-moving party has not provided
anything, but bare statements regarding agency in this matter[,]" the judge
dismissed plaintiffs' complaint because there were no facts demonstrating Turan
was driving defendant's vehicle as her agent. This appeal followed.
Before us, plaintiffs assert the presumption of agency, established in
Harvey, was not overcome by defendant, and Turan's permission from
defendant's husband created agency between Turan and defendant. In particular,
plaintiffs interpret Harvey to hold that "a blanket denial of agency would present
a jury question . . . negating the propriety of summary judgment on this issue."
They argue defendant's claim that Turan was not her agent is merely self-serving
hearsay and does not overcome the presumption of agency. They maintain
defendant is vicariously liable for Turan's negligence because defendant's
husband gave Turan permission to use her vehicle, and neither Turan nor her
husband provided an affidavit supporting defendant's motion. Thus, plaintiffs
maintain agency is an issue of fact to be decided by the jury. Finally, plaintiffs
assert summary judgment would not have been entered had oral argument been
held because it would have clarified the parties' respective position on agency.
A-5312-17T1
5
We are unpersuaded by plaintiffs' arguments and affirm substantially for
the sound reasons stated by Judge Ciarrocca in his oral decision. We add the
following comments.
Plaintiffs' interpretation of Harvey is incorrect. Harvey does not support
the principle that mere denial of agency by the owner of a motor vehicle is
enough to raise a question of material fact as to the existence of agency. Harvey
clearly indicates the presumption of agency can be rebutted by uncontradicted
facts. 110 N.J. Super. at 73. (holding a defendant-owner can rebut the
presumption "where a plaintiff seeks to hold him vicariously liable for the
negligence of the driver[,] . . . by uncontradicted testimony that no . . . principal-
agent relationship existed, or, if one did exist, that the . . . agent had transgressed
the bounds of his authority") (citations omitted).
Defendant asserted in her interrogatory answers and affidavit of no
agency that Turan was not her agent. Plaintiffs' failed to provide any facts
repudiating the assertion in the form of deposition testimony or affidavits from
defendant's husband, Turan, or anyone else to establish agency existed between
defendant and Turan. Plaintiffs therefore established no genuine issue of
material fact regarding agency to defeat summary judgment. See R. 4:46-2;
Brill, 142 N.J. at 529.
A-5312-17T1
6
As for the lack of oral argument, plaintiffs' consent to disposition of the
motion on the papers cannot serve as a basis to reverse the grant of summary
judgment. Moreover, given the fact that plaintiffs have failed to articulate how
summary judgment was improvidently granted, we see no reason to think oral
argument would have resulted in a favorable outcome for plaintiffs.
Affirmed.
A-5312-17T1
7