Opinion
No. 6113/2012.
2012-10-23
Jacques J. AUBRY, Plaintiff, v. U–HAUL COMPANY OF ARIZONA et al., Defendant.
Ofshtein Law Firm PC, by Akiva Ofshtein, Esq., Brooklyn, for the Plaintiff. Nicoletti Gonson & Spinner & Owen LLP, by Christine M. Vetter, Esq., New York, for the Defendant U–Haul Co. of Arizona i/s/h/a U–Haul Company of Arizona.
Ofshtein Law Firm PC, by Akiva Ofshtein, Esq., Brooklyn, for the Plaintiff. Nicoletti Gonson & Spinner & Owen LLP, by Christine M. Vetter, Esq., New York, for the Defendant U–Haul Co. of Arizona i/s/h/a U–Haul Company of Arizona.
CHARLES J. MARKEY, J.
Plaintiff allegedly was injured as the result of a motor vehicle accident involving a U–Haul rental truck, bearing Arizona license plate number AE10864, that was being operated by defendant Warner.
When considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), a court must accept the factual allegations of the complaint as true and afford plaintiff the benefit of every possible favorable inference, determining only whether those allegations make out any cognizable legal claim ( see, Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001];Leon v. Martinez, 84 N.Y.2d 83, 87–88 [1994];Melnicke v. Brecher, 65 A.D.3d 1020, 886 N.Y.S.2d 406 [2nd Dept.2009] ). Evidentiary material submitted in support of a CPLR 3211(a)(7) motion can be determinative only where it conclusively establishes that a material fact alleged by plaintiff is not a fact at all and there can be no significant dispute about it ( see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977];Allstate Ins. Co. v. Raguzin, 12 A.D.3d 468, 784 N.Y.S.2d 644 [2nd Dept.2004] ).
For a defendant to prevail on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence relied upon to establish a defense must definitively refute all factual issues as a matter of law and conclusively dispose of plaintiff's claim ( see, Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 [2002];Melnicke, 65 A.D.3d at 1020–1021, 886 N.Y.S.2d 406;Montes Corp. v. Charles Freihofer Baking Co., 17 A.D.3d 330 [2005].) An affidavit does not constitute documentary evidence and may not be considered on an application for dismissal pursuant to CPLR 3211(a)(1) ( see, Kappa Development Corp. v. Queens College Point Holdings, LLC, 95 A.D.3d 1178, 1179, 945 N.Y.S.2d 339 [2nd Dept.2012]; HSBC, USA v. Pugkhem, 88 A.D.3d 649, 651, 931 N.Y.S.2d 635 [2nd Dept.2011]; Berger v. Temple Beth–El of Great Neck, 303 A.D.2d 346, 756 N.Y.S.2d 94 [2nd Dept.2003] ).
Under the foregoing standards, plaintiff's complaint is sufficient to withstand a pre-answer dismissal pursuant to CPLR 3211(a)(1) and (a)(7).
Contrary to movant's contention, the negligence claim against it, upon the foregoing papers, is not premised solely upon the vicarious liability imposed upon the owner of a motor vehicle pursuant to Vehicle and Traffic Law section 388 for negligence in the permissive use or operation of the vehicle. Rather, plaintiff's complaint also alleges negligent maintenance of the U–Haul truck. Inasmuch as plaintiff thus seeks to hold U–HAZ directly liable for its own negligence, the Graves Amendment (49 USC § 30106) does not bar the claim ( see, Collazo v. MTA–New York City Tr., 74 A.D.3d 642, 905 N.Y.S.2d 30 [1st Dept.2010]; see also, Terranova v. Waheed Brokerage, Inc., 78 A.D.3d 1040, 912 N.Y.S.2d 253 [2nd Dept.2010].) Moreover, even if the Graves Amendment were applicable, the affidavits offered by U–HAZ to establish that it is engaged in the trade or business of renting or leasing motor vehicles, so as to bring itself within the statutory protection against a claim based solely on a theory of vicarious liability, were executed in Arizona and do not include the certificate of conformity necessary for out-of-state affidavits to be admissible as evidence (CPLR 2309[c]; Real Property Law § 299–a.)
Insofar as defendant U–HAZ attempts to avoid liability by denying ownership of the subject U–Haul vehicle, proof that an entity known as 2010 U–Haul Titling 2, LLC (Titling 2) is the title owner of the vehicle does not establish that U–HAZ is not an owner of the vehicle where both Title 2 and U–HAZ are listed on the Arizona vehicle registration and movant's own papers describe Titling 2 as the “title nominee” for its affiliates who are in the business of renting motor vehicles ( see, e.g., Terranova, 78 A.D.3d at 1040, 912 N.Y.S.2d 253;Zegarowicz v. Ripatti, 77 A.D.3d 650, 911 N.Y.S.2d 69 [2nd Dept.2010]; Keating v. SS & R Mgt. Co., 59 A.D.3d 176, 872 N.Y.S.2d 459 [1st Dept.2009]; Taughrin v. Rodriguez, 254 A.D.2d 735, 677 N.Y.S.2d 861 [4th Dept.1998].)
The evidentiary material submitted by U–HAZ, moreover, does not conclusively establish that the subject incident was not an accident but was a staged event intended to defraud. The only evidence proffered in support of this theory is an unsworn transcript of an interview with a third party who does not implicate plaintiff or identify all of the parties to this alleged scheme.
The motion to dismiss is denied.
The foregoing constitutes the decision, opinion, and order of the Court.