                                NOT FOR PUBLICATION WITHOUT THE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




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                                        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


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                                        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


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                                        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.




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                                        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.


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                                          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.




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