Opinion
8521/2010.
Decided March 8, 2011.
On June 4, 2009, plaintiff, ANGEL IZQUIERDO, was involved in a four car chain collision motor vehicle accident in the vicinity of the intersection of Hoyt Avenue South and 29th Street, Queens County, New York.
The first vehicle in the chain was operated by third-party defendant, Andrew R. Bernard and owned by Cab East LLC. Bernard alleges that his vehicle was stopped in traffic when it was hit in the rear by the vehicle owned and operated by third party defendant Stylianos Bakalexis. Bakalexis alleges that his vehicle was also stopped when it was hit in the rear by the vehicle owned and operated by plaintiff Angel Izquierdo who was allegedly injured. Izquierdo alleges that his vehicle was also stopped when it was rear-ended by the vehicle owned by defendant Rose Wexler and being operated by Joshua Wexler. Joshua, age 20, informed the police officer at the scene that he is diabetic and was not sure what happened.
Plaintiff commenced this action against Rose and Joshua Wexler by way of a summons and complaint filed on April 6, 2010. The Wexler's brought a third-party action against the drivers of the two lead vehicles for indemnification. A preliminary conference was held on August 11, 2010. The basis for the claim against Cab East is Vehicle and Traffic Law § 388, which imposes vicarious liability upon the owner/lessor of a vehicle for the negligence of the driver.
Defendant, Cab East now moves, prior to examinations before trial, for an order granting summary judgment dismissing the complaint against it, pursuant to CPLR 3212, alleging that under the Federal Transportation Equity Act of 2005, 49 U.S.C. § 30106, commonly known as the "Graves Amendment, a leasing/rental company vehicle owner can not be held to be vicariously liable for the alleged negligent acts of the renter, its employees or agents. Midway asserts that the Graves Amendment preempts New York Vehicle and Traffic Law § 388.
In support of its motion, CAB East submits the affirmation of Marlene M. Martel, an attorney and Assistant Secretary for CAB East LLC. Ms. Martel states in her affirmation that, "Cab East is a single purpose entity whose only business involves leased vehicles. Specifically, Cab East holds legal title to lease contracts and related vehicles." Ms. Martel also attaches a copy of the title and the lease regarding the vehicle involved in this accident. The title indicates that CAB East is the legal owner. The lease agreement indicates that Donna Bernard leased the vehicle from a dealership in New Jersey known as "Ram Maz, Inc. dba Ramsey Mazda." The vehicle was factory new when Ms. Bernard took possession of it and had an odometer reading of 30 miles. The lease agreement indicates that the finance company is Mazda American Credit and that the "Holder" is CAB East LLC. Ms. Martel states that, "CAB East's only connection to the vehicle was the fact that it held legal title to the lease agreement and to the vehicle at the time of the accident." Ms. Martel also affirms that absent voluntary surrender or repossession, under the Lease agreement, CAB East does not exercise any physical control over the vehicle once the lessee takes possession of it. Thus under the lease agreement, the lessee is responsible for the care maintenance and repair of the vehicle.
In his affidavit in support of the motion, Cab East's counsel states that pursuant to the Graves Amendment, as CAB East was a rental company, it is not vicariously liable under VTL § 388 and therefore, the complaint fails to state a cause of action.
In opposition, counsel for the third-party plaintiffs contends that Cab East's motion for summary judgment should be denied as there is a question of fact as to whether or not Cab East was the owner of the vehicle or a lessor of the vehicle in question. Counsel contends that Ms. Martel's affidavit only indicates that Cab East is the owner of the vehicle. Counsel contends that as depositions have not yet been held and as the parties have not had an opportunity to review or obtain documentation nor depose any witnesses who would have knowledge regarding the business practice of Cab East, the motion should be denied pending completion of discovery.
The Graves Amendment, regarding rented or leased motor vehicle safety and responsibility, bars vicarious liability actions against professional lessors and renters of vehicles, as would otherwise be permitted under Vehicle and Traffic Law § 388 (see Gluck v Nebgen , 72 AD3d 1023 [2d Dept. 2010]; Graham v Dunkley , 50 AD3d 55 [2d Dept. 2008]; Hernandez v. Sanchez , 40 AD3d 446 [1st Dept. 2007]).
The Transportation Equity Act of 2005 ( 49 USC § 30106) provides in pertinent part:
§ 30106 Rented or leased motor vehicle safety and responsibility.
"(a) In general. — An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if —
"(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and
"(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner)"
Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto, this court finds as follows:
It has now been determined that the Graves Amendment preempts all state statutes to the extent they hold those owners in the business of renting or leasing motor vehicles vicariously liable for the negligence of drivers, except when there is negligence or criminal wrongdoing on the part of the owner (see Gluck v Nebgen , 72 AD3d 1023 [2d Dept. 2010]; Graham v Dunkley , 50 AD3d 55 [2d Dept. 2008]; Hernandez v. Sanchez , 40 AD3d 446 [1st Dept. 2007]).
Here, there is no dispute that Cab East owned the vehicle in question and that the vehicle was leased by Bernard from Ram Maz, Inc. dba Ramsey Mazda. The third-party plaintiffs, however, dispute that the documents submitted and the Martel affirmation provide a sufficient basis to find that Cab East is engaged in the trade or business of renting or leasing motor vehicles as defined by the federal statute.
This Court finds that the third party plaintiffs are entitled to further discovery, including an examination before trial and document discovery, as to the role or involvement of Cab East in the leasing of the vehicle in question so as to determine whether they fit within the definition of a lessor under the Graves Amendment.
Accordingly, the motion by Cab East for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint against them is denied without prejudice to renew following the completion of discovery (see Botros v Flamm , 77 AD3d 602 [2d Dept. 2010]; Evangelista v Kambanis [2d Dept. 2010]).