Opinion
Index No. 23367/2020E Mot. Seq. No. 1
01-26-2022
FABIOLA FRANKLIN and REMY CANTAVE, Plaintiff, v. CARLA BENNETT, BUDGET TRUCK RENTAL, LLC., AVIS BUDGET CAR RENTAL, LLC. and AVIS BUDGET GROUP, INC., and ELAINE BENNETT. Defendants.
Unpublished Opinion
HON. VERONICA G. HUMMEL, A.J.S.C.
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF regarding the motion [Mot. Seq. 1] of plaintiff/plaintiff on the counterclaim FABIOLA FRANKLIN (plaintiff Franklin), made pursuant to CPLR 3212, seeking an order dismissing the counterclaim and all cross-claims alleged by defendants CARLA BENNETT and ELAINE BENNETT and defendants BUDGET TRUCK RENTAL, LLC., AVIS BUDGET CAR RENTAL, LLC., and AVIS BUDGET GROUP, INC (jointly "defendant Budget" or "the Budget defendants") against plaintiff Franklin and; the cross-motion by plaintiff Franklin and plaintiff REMY CANTAVE, made pursuant to CPLR 3212, seeking an order granting plaintiffs partial summary judgment on liability against defendants. In opposition to the motion and cross-motion, the Budget defendants seek dismissal of the action as against them based on the Graves Amendment.
Based on the submitted statements of material facts, the undisputed facts of this litigation are as follows: This is a personal-injury action arising out of a two-vehicle rear-end accident that occurred on March 1, 2019, on Bryant Avenue in Bronx County (the Accident). At the relevant location, Bryant Avenue is a one-way street with one lane for moving traffic and one lane for parking on both the right and left side. At the time of the Accident, plaintiff Cantave was a passenger in a motor vehicle operated by plaintiff Franklin (the plaintiffs' vehicle), and the defendants' vehicle, a truck, was owned by defendant Budget and rented to defendant Carla Bennett. At the time of the Accident, the defendants' vehicle struck the plaintiffs' vehicle in the rear.
In support of the motion and cross-motion, movants submit attorney affirmations, statements of material facts, a personal affidavit by plaintiff Franklin, and copies of pleadings. Movants also submit a reply affidavit and a response to the statement of material facts submitted by defendants.
In opposition to the motion and cross-motion, defendants submit affidavits of Elaine Carla Bennett (sued as "Elaine Bennett" and a person that states that she was the driver of the defendants' vehicle) and of an officer of defendant Budget, an attorney affirmation, and counter-statements of material fact.
In the affidavit, in relevant part, plaintiff Franklin avers that immediately before the collision, the plaintiffs' vehicle was stopped in front of the building where plaintiff Franklin works, with lights flashing. At the moment of the Accident, it was plaintiff Franklin's intention to exit the vehicle and go into work. It was her intention that after plaintiff Franklin left the vehicle, plaintiff Cantave was going to enter the driver's side seat and operate the vehicle to find a parking spot. As plaintiff Franklin prepared to exit the vehicle, the left rear side panel was struck by the defendants' vehicle. Plaintiff did not see the defendants' vehicle prior to impact. When the impact occurred, the plaintiffs' vehicle was at a complete stop, in park, and the engine was running with hazard lights on.
The defendant driver presents a different version of the relevant events. The defendant driver avers that she was driving a rental truck belonging to defendant Budget, which was rented on February 28, 2019, by her daughter and she was listed as an additional driver. During the entire rental period, the truck did not have mechanical problems, and the defendant driver was not an employee of the Budget defendants.
At the time of the Accident, the defendants' vehicle was travelling 10 mph. While driving on Bryant Avenue, the defendant driver first observed the plaintiffs' vehicle four car lengths in front of her, parked in the right hand parking lane. As the defendants' vehicle approached, the plaintiffs' vehicle did not have any hazard lights or parking lights or turn signals on. As the defendants' vehicle approached the plaintiffs' vehicle, while fully in the moving lane, the defendant driver saw the plaintiffs' vehicle suddenly and without warning pull out into the moving lane of traffic. Upon observing the plaintiffs' vehicle suddenly pulling out, the defendant driver attempted to move the defendants' vehicle to the left into an open driveway. The plaintiffs' vehicle created an emergency for the defendant driver and while the defendant driver hit the brakes, she was not provided enough time to stop the defendants' vehicle. As a result, the plaintiffs' vehicle came into contact with the right side of the defendants' vehicle. The defendant driver believes that plaintiff Franklin is fully or partially responsible for the Accident.
The Budget defendants submit the affidavit of Jim Brown, the director of litigation and large loss, Insurance Claims Operations for Avis Budget Car Rental, LLC, which is an affiliated company and parent corporation of Budget Truck Rental, LLC. and Centre Pointe Funding LLC. He avers that Avis Budget Group, Inc. is a parent company of Avis Budget Car Rental LLC. and Budget Truck Rental LLC., Avis Budget Car Rental LLC., Centre Pointe Funding, and Avis Budget Group, Inc. are all in the business of renting motor vehicles. Centre Pointe Funding LLC. is the nominee holder for Bank of New York Mellon Trust Company (Mellon). Mellon in turn leases the vehicles to Avis Budget Car Rental, which then subleases the vehicles to Budget Truck Rental,LLC. for renting to the general public pursuant to rental agreements.
On the date of the Accident, Centre Pointe Funding owned the defendants' truck. Based on business records, the defendants' truck was rented to the Carla Bennett by Budget Truck Rental, LLC. as a company that is authorized to rent trucks on behalf of Budget, and the defendant driver was an additional driver. Carla Bennett and the defendant driver were not employees of any of the Budget defendants. Avis Budget Group Inc. and Avis Budget Car Rental LLC. were not involved in the relevant rental transaction in any manner. The service records on the truck show that it was in good condition and there were no mechanical problems. The affiant submits a copy of the rental agreement between Budget Truck Rental LLC and defendant Carla Bennett.
The motions
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case." Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985].. A plaintiff in a negligence action moving for summary judgment on the issue of liability must, therefore, establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. Fernandez v. Ortiz, 183 A.D.3d 443 [1st Dept 2020]. A plaintiff is not required, however, to demonstrate his or her freedom from comparative fault in order to establish a prima facie entitlement to summary judgment on the issue of liability. Rodriguez v. City of N.Y., 31 N.Y.3d 312, 324-25 [2018]. Upon the required showing, the burden then shifts to the nonmovant to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v. Metro. Museum of Art, 27 A.D.3d 227, 228 [1st Dep't 2006]. "On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012].
Plaintiffs' motion for partial summary judgment on liability
Plaintiff Franklin:
Motion for partial summary judgment on liability and dismissal of counter-claims and cross-claims.
It is well settled that "[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate, nonnegligent explanation for the accident." Urena v. GVC Ltd., 160 A.D.3d 467, 467 [1st Dep't 2018] (quoting Matos v. Sanchez, 147 A.D.3d 585, 586 [1st Dep't 2017]); Santos v. Booth, 126 A.D.3d 506, 506 [1st Dep't 2015]; Woodley v. Ramirez, 25 A.D.3d 451, 452 [1st Dep't 2006]. Under New York Vehicle and Traffic Law ("VTL") § 1129(a), "a driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and traffic upon the condition of the highway." In other words, a driver must maintain a safe distance between his vehicle and the one in front of her. A violation of VTL § 1129(a) is prima facie evidence of negligence, and "[t]his rule has been applied when the front vehicle stops suddenly in slow-moving traffic." Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 A.D.3d 216, 223-24 [1st Dep't 2007] (quoting Johnson v. Phillips, 261 A.D.2d 269, 271 [1st Dep't 1999]); Mascitti v. Greene, 250 A.D.2d 821, 822 [2d Dep't 1998]. In a rear-end collision, there is a presumption of non-negligence of the driver of the lead vehicle. See Soto-Maroquin v. Mellet, 63 A.D.3d 449, 450 [1st Dep't 2009].
Based on the affidavit of plaintiff, plaintiff Franklin establishes prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiffs' vehicle was at a complete stop, with hazard lights on, and safely parked when it was struck in the rear by the defendants' vehicle.
Defendants, in turn, have come forward with an adequate non-negligent explanation for the Accident. The defendant driver, by her affidavit, states that plaintiff Franklin suddenly attempted to merge from a parking lane into the moving lane of travel, without lights or turn signals, and that the defendant driver saw the move only immediately before the impact occurred. Under these facts, plaintiff Franklin violated Vehicle and Traffic Law §§ 1162 and 1143 by pulling the plaintiffs' vehicle out of the parking space and into moving traffic before it was reasonably safe to do so (see Candelario v. Gold, 184 A.D.3d 798 [2d Dep't 2020]). Hence, defendants raise a triable issue of fact by the defendant driver's affidavit which shows an alternative explanation for the Accident in which the defendant driver was not negligent at all (Green v. Masterson, 172 A.D.3d 826 [2d Dep't 2019]; Jacino v Sugerman, 10 A.D.3d 593, 595 [2d Dep't 2004]). Accordingly, plaintiff Franklin's motion for partial summary judgment on liability in her favor is denied
Cross-motion for dismissal of the counter-claims and cross-claims
Based on the questions of fact set forth above, plaintiff Franklin's cross-motion for dismissal of the counterclaim and cross-claims alleged against her based on a finding that plaintiff Franklin is without liability for the Accident is denied.
Plaintiff Cantave:
Motion for partial summary judgment on liability
It is undisputed that plaintiff Cantave was a passenger in the plaintiffs' vehicle. CPLR 3212 (g) permits the court to limit issues of fact for trial, by specifying which facts are not in dispute or are incontrovertible, and such facts shall be deemed established for all purposes in the action" (Garcia v. Tri County Ambulette Serv., 282 A.D.2d 206, 207 [1st Dep't 2001]). In Garcia v. Tri-County Ambulette Service, Inc., the court ruled that "plaintiff, as an innocent rear-seat passenger in one of the vehicles who cannot possibly be found at fault under either defendant's version of the accident is entitled to partial summary judgment." (Id. at 207).
Of note, there is a significant distinction between granting a plaintiff summary judgment on her lack of culpable conduct on liability and granting a plaintiff summary judgment on every defendants' negligence (Oluwatayo v. Dulinayan, 142 A.D.3d 113 [1st Dep't 2016]). A grant of partial summary judgment against a defendant on liability in a negligence case is the equivalent of finding that the defendant owed the plaintiff a duty of care, the defendant breached that duty by its negligence, and such breach proximately caused the plaintiff injury (Id.; Ortega v. Liberty Holdings, LLC, 111 A.D.3d 904, 905-906 [2d Dep't 2013]). In contrast, a grant of partial summary judgment on the issue of the plaintiff's lack of fault or culpability is a much narrower finding. Such a finding merely establishes as a matter of law that the plaintiff is free of any negligence, as would be the case of an innocent passenger (Campbell v. Mincello, 184 A.D.3d 412 [1st Dep't 2020]). The pronouncement in Garcia v Tri County Ambulette Serv., supra stands only for the proposition that in motor vehicle negligence actions, an innocent plaintiff is entitled to a determination that she had no culpable conduct on the issue of liability irrespective of the unresolved issue of the respective drivers' negligence (Oluwatayo v. Dulinayan, supra).
Here, it is undisputed that plaintiff Cantave was a passenger in the plaintiffs' vehicle and there is no claim that plaintiff Cantave contributed to causing the Accident. As such, the motion by plaintiffs seeking partial summary judgment on liability is granted only to the extent that plaintiff Cantave, as an innocent passenger, is found free from culpable conduct for the happening of the Accident. Likewise, any affirmative defenses based on culpable conduct and comparative negligence alleged against plaintiff Cantave are dismissed (Oluwatayo v Dulinayan, supra).
The Budget defendants application for dismissal based on the Graves Amendment
In opposition to the motion, the Budget defendants argue that the causes of action must be dismissed as against them based on the application of the Graves Amendment to the facts as alleged in the complaint. Plaintiffs and co-defendants do not oppose this application in their papers.
Under the Graves Amendment, the owner of a leased or rented motor vehicle cannot be held vicariously liable "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)" (49 USC § 30106 [a]).
Here, the Budget defendants submit the affidavit of James Brown, an officer of defendants' business. Brown outlines the various business relationships between the relevant Budget defendants and avers that the vehicle involved in this accident was rented/loaned by defendants to Bennett. Additionally, Brown avers that renting defendants are in the business of renting and loaning motor vehicles, and that two of the named defendants have no connection to the lease. The copy of the lease and the testimony of defendant Bennett confirm these facts.
Of note, there are no claims of criminal wrongdoing or negligence on the part of the movants alleged in the complaint (see Cioffi v. S.M. Foods, Inc., 178 A.D.3d 1006 [2d Dep't 2019]). When the sole basis of a claim in the action against a defendant is based on Vehicle and Traffic Law section 388, and the defendant qualifies under the Graves Amendment, the action is barred (Villa-Capellan v Mendoza, 135 A.D.3d 555 [1st Dep't 2016]). Accordingly, as a matter of law, the causes of action alleged against defendants Budget Truck Rental LLC., Avis Budget Car Rental, LLC. and Avis Budget Group, Inc. are barred by the Graves Amendment and are therefore appropriately dismissed.
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by a party is not addressed by the Court, it is hereby denied. Accordingly, it is
ORDERED that the motion [Mot. Seq. 1] of plaintiff/plaintiff on the counterclaim FABIOLA FRANKLIN (plaintiff Franklin), made pursuant to CPLR 3212, seeking an order dismissing the counterclaim and any cross-claims alleged by defendants CARLA BENNETT and ELAINE BENNETT and defendants BUDGET TRUCK RENTAL, LLC., AVIS BUDGET CAR RENTAL, LLC., and AVIS BUDGET GROUP, INC. (jointly the Budget defendants) against plaintiff Franklin is denied; and it is further
ORDERED that the part of the cross-motion by plaintiff Franklin and plaintiff REMY CANTAVE, made pursuant to CPLR 3212, seeking an order granting plaintiffs partial summary judgment on liability against defendants is granted only to the extent that plaintiff Cantave is found to be an innocent passenger free from liability for the Accident; and it is further
ORDERED that any affirmative defense based on comparable negligence and any counterclaim alleged against plaintiff Cantave are dismissed; and it is further
ORDERED the application by the Budget defendants seeking dismissal of the action as against them based on the Graves Amendment is granted; and it is further
ORDERED that the Clerk shall issue a judgment dismissing the complaint and all cross-claims alleged against the Budget defendants and severing the remaining action; and it is further
ORDERED that the caption shall henceforth read as:
And it is further;
ORDERED that the Clerk shall mark the motion (Seq. No. 1) disposed in all court records.
This constitutes the decision and order of the Court.