Opinion
9681 Index 31473/17
06-20-2019
Jannique BOU, Plaintiff-Respondent, v. Carlos A. LLAMOZA, Defendant, Vault, Defendant-Appellant, Bryan F. Lytle, Defendant-Respondent.
Montfort, Healy, McGuire & Salley LLP, Garden City (Hugh Larkin of counsel), for appellant. Greenberg & Stein, P.C., New York (Ian Asch of counsel), for Jannique Bou, respondent. Russo & Tambasco, Melville (Susan J. Mitola of counsel), for Brian F. Lytle, respondent.
Montfort, Healy, McGuire & Salley LLP, Garden City (Hugh Larkin of counsel), for appellant.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for Jannique Bou, respondent.
Russo & Tambasco, Melville (Susan J. Mitola of counsel), for Brian F. Lytle, respondent.
Friedman, J.P., Richter, Kahn, Singh, JJ.
Defendant Vault, the owner of the vehicle that allegedly struck plaintiff's vehicle, moved to dismiss the complaint against it based on documentary evidence purportedly establishing that it is a commercial lessor of vehicles, and therefore immune from vicarious liability under the Graves Amendment ( 49 USC § 30106 [a]; see Olmann v. Neil, 132 A.D.3d 744, 745, 18 N.Y.S.3d 105 [2d Dept. 2015] ; Hernandez v. Sanchez, 40 A.D.3d 446, 447, 836 N.Y.S.2d 577 [1st Dept. 2007] ). The affidavit and lease submitted by Vault in support of its motion did not establish a defense based on documentary evidence ( Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ). Since the lease agreement did not name either Vault, or its purported affiliate Allied Financial Services (Ally), as a lessor or assignee of the lease, it was insufficient to establish that Vault was engaged in the trade or business of renting or leasing vehicles (see Cassidy v. DCFS Trust, 89 A.D.3d 591, 933 N.Y.S.2d 31 [1st Dept. 2011] ). The affidavit of an employee from Ally does not constitute "documentary evidence" for purposes of a motion to dismiss pursuant to CPLR 3211(a)(1) ( Art & Fashion Group Corp. v. Cyclops Prod. Inc., 120 A.D.3d 436, 992 N.Y.S.2d 7 [1st Dept. 2014] ). In any event, the affidavit did not adequately explain the relationship between Vault and Ally, and also failed to sufficiently authenticate the lease, as the affiant did not demonstrate that he had sufficient personal knowledge of the specific lease in question (cf. Burrell v. Barreiro, 83 A.D.3d 984, 985, 922 N.Y.S.2d 465 [2d Dept. 2011] ). For the same reasons, Vault's documentary submissions also fail to conclusively establish a defense to the allegations that it was negligent in its ownership, supervision, or maintenance of the vehicle (see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).
We have considered the remaining arguments and find them unavailing.