Opinion
2017–10452 Index No. 15005/17
02-13-2019
Suzana CUKOVIQ, Respondent, v. Rakhshanda IFTIKHAR, Defendant, Nissan-Infiniti LT, et al., Appellants.
London Fischer LLP, New York, N.Y. (Clifford B. Aaron and Michael B. Weiss of counsel), for appellants. William Schwitzer & Associates, P.C., New York, N.Y. (Howard R. Cohen of counsel), for respondent.
London Fischer LLP, New York, N.Y. (Clifford B. Aaron and Michael B. Weiss of counsel), for appellants.
William Schwitzer & Associates, P.C., New York, N.Y. (Howard R. Cohen of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants Nissan-Infiniti LT and NILT, Inc., appeal from an order of the Supreme Court, Richmond County (Kim Dollard, J.), dated September 15, 2017. The order, in effect, denied the motion of those defendants pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Nissan-Infiniti LT and NILT, Inc., pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them is granted.
On November 1, 2016, at the intersection of Narrows Road South and Richmond Road in Staten Island, the plaintiff allegedly sustained personal injuries when she was struck by a motor vehicle operated by the defendant Rakhshanda Iftikhar and owned by defendants Nissan-Infiniti LT and NILT, Inc. (hereinafter together the Nissan defendants). The plaintiff commenced this action, alleging, inter alia, that the Nissan defendants were vicariously liable for Iftikhar's alleged negligent operation and maintenance of the vehicle, which caused the accident. Thereafter, the Nissan defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them on the ground that they were entitled to the protection of the Graves Amendment ( 49 U.S.C. § 30106 ) and, therefore, could not be held vicariously liable for Iftikhar's negligence. The Supreme Court, in effect, denied the motion, and the Nissan defendants appeal.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Aviaev v. Nissan Infiniti LT, 150 A.D.3d 807, 808, 55 N.Y.S.3d 297 ; Baron v. Galasso, 83 A.D.3d 626, 628, 921 N.Y.S.2d 100 ). Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Caliguri v. JPMorgan Chase Bank, N.A., 121 A.D.3d 1030, 1031, 996 N.Y.S.2d 73 ).
Under the Graves Amendment, in order for recovery to be barred, the owner, or an affiliate of the owner, must be engaged in the trade or business of renting or leasing motor vehicles, and the owner, or its affiliate, must not be negligent (see Antoine v. Kalandrishvili, 150 A.D.3d 941, 942, 56 N.Y.S.3d 142 ; Aviaev v. Nissan Infiniti LT, 150 A.D.3d at 808, 55 N.Y.S.3d 297 ; Khan v. MMCA Lease, Ltd., 100 A.D.3d 833, 834, 954 N.Y.S.2d 595 ).
Here, the Nissan defendants demonstrated that they were the owners of the subject vehicle and were engaged in the business of renting or leasing motor vehicles (see Aviaev v. Nissan Infiniti LT, 150 A.D.3d at 808, 55 N.Y.S.3d 297 ; Gluck v. Nebgen, 72 A.D.3d 1023, 898 N.Y.S.2d 881 ). Additionally, to the extent that the plaintiff's theory of negligent maintenance or mechanical malfunction was supported by factual allegations, the Nissan defendants established that the allegations were not facts at all through its submissions showing that the Nissan defendants never possess, inspect, repair, maintain, or service the vehicles they lease and that it was the sole responsibility of the lessee of the subject vehicle, Iftikhar, to maintain that vehicle (see Guggenheimer v. Ginzburg, 43 N.Y.2d at 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; see also Antoine v. Kalandrishvili, 150 A.D.3d at 942, 56 N.Y.S.3d 142 ; Aviaev v. Nissan Infiniti LT, 150 A.D.3d at 808, 55 N.Y.S.3d 297 ; Khan v. MMCA Lease, Ltd., 100 A.D.3d at 834, 954 N.Y.S.2d 595 ).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the Nissan defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.
SCHEINKMAN, P.J., MASTRO, MALTESE and BARROS, JJ., concur.