[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ANTONIO I. BRANDVEEN, J.

The defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO, Inc. move for an order dismissing all claims against them pursuant to CPLR 3211 (a) (7) and 49 USC § 30106. The plaintiff opposes this motion on the grounds the federal Graves Amendment which preempted the New York Vehicle and Traffic Law § 388 to the extent it applies to rental and leasing companies has been held unconstitutional, the plaintiff's complaint alleges these defendants breached their duty by failing to keep and maintain the subject 2004 Nissan automobile, New York State license plate number CRG5777, in a proper and safe mechanical and operating condition, and they negligently permitted the defendant Bryan Cox to operate that motor vehicle when he had a history of suspended driving privileges.

The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO states, in a supporting affirmation dated December 24, 2007, the plaintiff commenced the underlying personal injury action on November 21, 2006, arising from a motor vehicle accident which allegedly occurred on December 4, 2003, at approximately 7:30 p.m., at Earle Covington Boulevard, North of Hempstead Turnpike, by the Nassau Veterans Memorial Coliseum parking lot entrance, when the vehicle operated by the plaintiff came into contact with the vehicle owned and rented by the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO, but operated by the defendant Bryan Cox. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO states the defendant rented the subject motor vehicle to the defendant Bryan Cox on November 17, 2003. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO avers the only legal theory asserted by the plaintiff against the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO is vicarious liability for the plaintiff's alleged injury. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO contends all claims against these defendants must be dismissed, as a matter of law, because they cannot be held to be vicariously liable where the action commenced after the date the federal law was enacted, to wit August 10, 2005. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO maintains these defendants have no legal responsibility for the use and operation of the subject motor vehicle. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO asserts there is no evidence which can attribute any negligence against these defendant for the failure to properly maintain the vehicle. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO argues all claims asserted against these defendants should be dismissed with prejudice as they are simply the third party administrator adjusting claims.

William Perry, who is employed by ELRAC, Inc. as a loss control manager states, in a supporting affidavit dated December 21, 2007, he searched the loss control file associated with the ELRAC, Inc. rental vehicle New York plate number CRG5777 which had been closed and in storage. Perry states the vehicle in question was a 2004 Nissan Maxima allegedly involved in a December 4, 2003 accident which was rented by the defendant Bryan Cox on November 17, 2003, for a period of 19 days pursuant to a rental agreement. Perry asserts the defendant Bryan Cox was not an employee of ELRAC, Inc. Perry avers, upon searching the file for the vehicle in question, he was able to determine the vehicle had approximately 4,545 miles at the time of the rental. Perry reports a search of the maintenance record of the vehicle revealed the 2004 Nissan Maxima had no maintenance or repairs performed prior to the accident. Perry states the vehicle was not due to have any maintenance performed because the vehicle just entered the fleet, and no maintenance was scheduled to performed prior to the accident pursuant to the manufacturer's specifications. Perry states ELRAC, Inc. did view the vehicle between the rentals for any damage or performance problems, and none existed for this vehicle prior to the accident. Perry indicates a further search of the file revealed no complaints were registered by the prior renters regarding any maintenance or performance problems for the this vehicle.

The plaintiff's attorney states, in an opposing affirmation dated January 24, 2008, the plaintiff's claim of liability against the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO is separate and distinct from the traditional vicarious liability theory. The plaintiff's attorney states the complaint alleges the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO failed to keep and maintain the 2004 Nissan automobile in a proper and safe mechanical and operating condition. The plaintiff's attorney states, as owners of the vehicle, the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO had a duty to properly maintain the vehicle in a safe and operating condition, especially if they are in the business of renting the vehicle to other drivers. The plaintiff's attorney states the plaintiff alleges these defendants negligently permitted the defendant Bryan Cox to operate that motor vehicle. The plaintiff's attorney points out, upon information and belief, the defendant Bryan Cox has a history of suspended driving privileges, and it is questionable whether the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO rented their vehicle to the defendant Bryan Cox during a time that his driving privileges were suspended. The plaintiff's attorney notes the defendant Bryan Cox has numerous traffic violation convictions on his driving record, and the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO had a duty to properly investigate prior to permitting the defendant Bryan Cox to drive one of their vehicles. The plaintiff's attorney contends the defense assertion that the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO are protected by 49 USCA § 30106, to wit vicarious liability of rental and leasing companies does not allow these defendants to blindly rent their vehicles to unsafe drivers, fail to properly investigate driving records nor ignore unsafe driving records by believing they will completely escape any liability under 49 USCA § 30106. The plaintiff's attorney argues the constitutionality of 49 USCA § 30106 has been questioned, and found to be unconstitutional as an impingement of New York State's long-standing substantive tort law, and as exceeding the scope of congressional powers. The plaintiff's attorney avers the plaintiff expressly reserve the right to amend or supplement the bill of particulars, and the plaintiff intends to do so upon further discovery. The plaintiff's attorney notes the examinations before trial of the defendants have not yet been taken place, and the defendant Bryan Cox was scheduled to be deposed on January 25, 2008, and the plaintiff intends to depose a representative of the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO shortly after the defendant Bryan Cox's deposition, especially in light of the affidavit of William Perry submitted by these defendants in support of this motion where Perry speaks of the vehicle's maintenance history.

The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO states, in a reply affirmation dated January 29, 2008, the legal authority cited by the plaintiff's attorney regarding vicarious liability was overruled by subsequent decisions by the Appellate Division, Second Department. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO contends the Federal Transportation Act, to wit 49 USCA § 30106 makes evident the United States Congress intended to pre-empt the New York Vehicle and Traffic Law § 388 which holds an owner of a leased vehicle vicariously liable for the negligence of an operator of the vehicle. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO points out the plaintiff fails to provide any proof that the defendant ELRAC, Inc. was negligent for an alleged failure to maintain the rental vehicle in a proper and safe mechanical operating condition, rather the defense, in the Perry sworn statement, details no mechanical problems with the rental vehicle at the time of the rental. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO also notes the plaintiff provides no proof of the allegations the defendant Bryan Cox had numerous convictions for traffic violations, and a suspended license to support of the plaintiff's assertion the defendant ELRAC, Inc. had a duty to properly investigate these circumstances. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO asserts the allegation regarding the defendant Bryan Cox's unproven driving record is irrelevant, and the plaintiff has failed to show some form of active negligence by these defendants which led to the happening of this accident. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO points to the January 25, 2008 deposition testimony of the defendant Bryan Cox to show he operated an Enterprise rental vehicle, the operator did not experience any mechanical problems with the vehicle on the date of the accident nor during the rental period. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO also observes the defendant Bryan Cox testified he had a valid driver's license on the date of the accident, and it was not under suspension. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO submits the complaint fails to state a cause of action against these defendants. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO maintains all claims against ELRAC, Inc., a vehicle renting company and the owner of the subject vehicle, should be dismissed with prejudice, as well as the causes of action against Enterprise Rent-A-Car and ELCO because they were improperly named. The attorney for the defendants Enterprise Rent-A-Car, ELRAC, Inc. and ELCO asserts Enterprise Rent-A-Car is not a viable entity, and is simply the location of the rental vehicles, and ELCO is a separate entity, and functions as the third party administrator for claims and actions brought against ELRAC, Inc.

On August 10, 2005, President George W. Bush signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), a comprehensive transportation bill which included the Graves Amendment, now codified at 49 USC § 30106. The section, entitled "Rented or leased motor vehicle safety and responsibility," states, in relevant part: "(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)."

Graham v. Dunkley , ___ NYS2d ___, 2008 WL 269527, 2008 NY Slip Op. 00958 [2nd Dept., February 1, 2008].

The enactment of the Transportation Equity Act of 2005 ( 49 USCA § 30106), went into effect on August 10, 2005, more than a year before this subject motor vehicle accident. The only basis for a claim by the plaintiff against these defendants is Vehicle and Traffic Law § 388, which imposes vicarious liability upon the defendant Vaul Trust for the negligence of the driver. However, Transportation Equity Act of 2005 ( 49 USCA § 30106), the "Graves Amendment," bars New York State vicarious liability actions commenced on or after August 10, 2005, against owners of motor vehicles "engaged in the trade or business of renting or leasing motor vehicles," such as Vaul Trust ( see Williams v. White , 40 AD3d 110, 832 NYS2d 713; Kuryla v. Halabi , 39 AD3d 485, 835 NYS2d 230 Jones v. Bill , 34 AD3d 741, 825 NYS2d 508; also see Seymour v. Penske Truck Leasing Co., L.P. , 407CV015, (S.D.Ga.7-30-2007) and Garcia v. Vanguard Car Rental USA, Inc. , 5:06-cv-220-Oc-10GRJ, [M.D.Fla. 3-5-2007] both holding 49 U.S.C. § 30106 constitutional with Vanguard Car Rental USA, Inc. v. Huchon , 06-10082-civ-Moore/Garber [S.D.Fla. 9-14-2007], where the constitutionality of the statute has been upheld in two out of the three federal court cases found to have considered the question).

Generally, at common law, absent an agency relationship, the owner of a vehicle was not vicariously liable for injuries caused by a driver using the vehicle with the owner's permission ( see Morris v Snappy Car Rental , 84 NY2d 21, 27). In 1924, the New York State Legislature enacted a statute which imposed such liability ( see former Highway Law § 282-e). The substance of that statute has been continued and is now codified in Vehicle and Traffic Law § 388, which provides, in relevant part: "Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner." The statute "expresses the policy that one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant" ( Continental Auto Lease Corp. v Campbell , 19 NY2d 350, 352; see Tikhonova v Ford Motor Co. , 4 NY3d 621, 624; Morris v Snappy Car Rental , 84 NY2d at 27).

Graham v. Dunkley , ___ NYS2d ___ 2008 WL 269527, supra ).

The Second Department held: "We agree with the weight of precedent that the Graves Amendment was a constitutional exercise of Congressional power pursuant to the Commerce Clause of the United States Constitution.". . . Contrary to the plaintiff's contentions, the Graves Amendment does regulate an economic activity — the rental and lease of vehicles. That the statute does so by preempting rules of state tort law does not make it unconstitutional. ( Graham v. Dunkley , ___ NYS2d ___ 2008 WL 269527, supra ).

Congress may choose to preempt state liability schemes in order to effectuate regulation of economic activities which affect interstate commerce. It is the primary activity — here, the rental and lease of vehicles — which is to be evaluated for its economic nature and its impact on interstate commerce. There can be no real dispute that the rental and lease of vehicles, and the conditions under which such transactions occur, are economic activities which impact the national market. While the plaintiff argues that the link between state vicarious liability rules and interstate commerce is too attenuated to support the legislation, the link here is direct . . . The finding that Congress had the authority, pursuant to the Commerce Clause, to enact the Graves Amendment, thereby preempting conflicting New York law, ends the analysis ( see US Const, art VI, cl 2).

( Graham v. Dunkley , ___ NYS2d ___ 2008 WL 269527, supra ).

CPLR 3211 (a) provides:

Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: (2) the court has not jurisdiction of the subject matter of the cause of action; and (7) the pleading fails to state a cause of action.

This Court has carefully reviewed and considered all of the parties' papers on this motion. As a matter of law as enunciated in the holding of Graham v. Dunkley (___ NYS2d ___ 2008 WL 269527, supra ), the Court finds the plaintiff has failed to state a cause of action with respect to vicarious liability. The Court also finds the plaintiff has failed to provide any showing to counter the proof supplied by the defense regarding the driving record of the defendant Bryan Cox, who is also represented by the defense counsel, nor any legal authority for the plaintiff's contention the defendants were under a duty to investigate the driving record of the defendant Bryan Cox. Rather, the plaintiff submits only the affirmation of plaintiff's counsel, who is not a person with personal knowledge of the plaintiff's assertions regarding the defendant Bryan Cox. This Court considered the affirmation of the plaintiff's and, finds it speculative and otherwise lacking probative value with respect to the assertions of the driving record of the defendant Bryan Cox, and the defendants duty to investigate the driving record of the defendant Bryan Cox ( see Warrington v. Ryder Truck Rental, Inc. , 35 AD3d 455 , 826 NYS2d 152 [2nd Dept., 2006]).

Accordingly, the defense motion is granted pursuant to CPLR 3211 (a) (2), (7) to dismiss the plaintiff's claims based solely on vicarious liability against the defendant as those claims failing to state a cause of action.

So ordered.