Opinion
Index No. 30306/2017E
01-07-2019
RONALD HINDS and SHARLENE HINDS, Plaintiffs, v. EFFICIENCY ENTERPRISES, INC. and PEDRO J. MEDINA, Defendants.
Unpublished Opinion
DECISION AND ORDER
Hon. JOHN R. HIGGITT, A.J.S.C.
The following papers numbered 17 to 24. 30 to 43, 45 to 46 and 50 to 56 in the NYSCEF System read on this motion for SUMMARY JUDGMENT (DEFENDANT), noticed on June 22, 2018 and duly submitted as No. 32 on the Motion Calendar of September 25, 2018.
| NYSCEF Doc. Nos. | |
| Notice of Motion - Exhibits and Affidavits Annexed | 17-24 |
| Notice of Cross-Motion - Exhibits and Affidavits Annexed | 30-43 |
| Answering Affidavit and Exhibits | 46 |
| Replying Affidavit and Exhibits | 50-56 |
| Filed Papers | |
| Memoranda of Law | |
| Stipulations | 45 |
Upon the foregoing papers, the motion of defendant Efficiency Enterprises, Inc. for summary judgment is granted, and the plaintiffs' cross motion to amend the pleadings is denied, in accordance with the annexed decision and order.
This negligence action arises out of a motor vehicle accident that occurred on November 10, 2014. At that time defendant Pedro J. Medina, in the course of his employment with Empire Merchants, LLC (Empire), was driving the vehicle owned by defendant Efficiency Enterprises, Inc. (Efficiency). Defendant Efficiency seeks summary judgment under the Graves Amendment (49 USC § 30106). Plaintiffs cross-move to amend the complaint to add Empire as a defendant. For the reasons that follow, defendant Efficiency's motion for summary judgment is granted and plaintiffs' cross motion for leave to amend the complaint is denied.
Under the Graves Amendment, the owner of a leased or rented motor vehicle is not vicariously liable for personal injuries sustained as a result of an accident involving a leased or rented vehicle (see Jones v Bill, 10 N.Y.3d 550, 554 [2008]). To establish summary judgment under the Graves Amendment, the owner of the leased or rented vehicle must show that: (1) the movant is in the business of leasing or renting motor vehicles; (2) the movant owned the subject vehicle; (3) the movant leased or rented the subject vehicle to a third party; and (4) the resulting accident was not caused by negligent maintenance on the owner's part (see Villa-Capellan v Mendoza, 135 A.D.3d 555, 556 [1st Dept 2016]; CassidyvDCFS Trust, 89 A.D.3d 591, 591 [1st Dept2011]).
Defendant Efficiency satisfied its prima facie burden of establishing its entitlement to judgment as a matter of law under the Graves Amendment. Defendant Efficiency submitted a copy of the pleadings, the rental agreement, the vehicle maintenance history, and the affidavit of Jeremy Karamel, defendant Efficiency's vice-president. In his affidavit, Keramel averred that Efficiency is in the business of renting and leasing vehicles and that the subject vehicle was leased to Empire at the time of the accident. Karamel further averred that a search of the vehicle's maintenance history records demonstrates that the vehicle had no malfunctions when it was leased by Empire, and that no issues were brought to Efficiency's attention in regard to any repairs needed. Thus, defendant Efficiency provided sufficient evidence in admissible form to establish its entitlement to judgment as a matter of law (see CPLR 3212[b]).
In opposition, plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Plaintiffs argue that defendant Efficiency's motion should be denied because that defendant maintained full control of any needed repairs. However, the lease agreement stated that notification to Efficiency of the need for repair rested solely with Empire, and, as above, Efficiency demonstrated that it was not notified of the need for any repair.
Plaintiffs further argue that the motion should be denied as premature, as discovery should be conducted as to the vehicle maintenance records. The mere hope that a party might be able to uncover some evidence during the discovery process, however, is insufficient to deny summary judgment (see Castaneda v DO & CO New York Catering, Inc., 144 A.D.3d 407 [1st Dept 2016]; Avant v Cepin Livery Corp., 74 A.D.3d 533 [1st Dept 2010]; PlannedBldg. Servs., Inc. v S.L. Green Realty Corp., 300 A.D.2d 89 [1st Dept 2002]).
In regard to plaintiffs* cross motion, leave to amend a pleading should be granted freely unless the amendment is patently meritless, prejudicial to the opposing party or both; and a movant must include any proposed amendment or supplemental pleading with the motion (see CPLR 3025[b]; see also Kimso Apartments, LLC v Gandhi, 24 N.Y.3d 403, 411 [2014]). Failure to include the proposed or supplemental pleadings warrants denial of the motion (see Muro-Light v Farley, 95 A.D.3d 846 [2nd Dept 2012]). Here, plaintiffs failed to include a proposed amendment or supplemental pleading with their cross motion. Thus, their motion is denied.
Accordingly, it is
ORDERED, that the motion of defendant Efficiency Enterprises, Inc. for summary judgment is granted, and the complaint as against it and all cross claims against it are dismissed; and its further
ORDERED, that the Clerk of the Court shall enter judgment in favor of defendant Efficiency Enterprises, Inc. dismissing the complaint as against it and all cross claims against it; and its further
ORDERED, that plaintiffs' cross motion for leave to amend the summons and complaint and the caption is denied.
This constitutes the decision and order of the court.