Opinion
2017–04645 Index No. 514676/16
10-10-2018
Ricardine CASINE, respondent, v. Paul WESNER, et al., appellants.
Harris, King, Fodera & Correia, New York, N.Y. (Michael J. DeGuida–DeRise and Laurent Chevalier of counsel), for appellants. William Schwitzer & Associates, P.C., New York, N.Y. (Howard R. Cohen of counsel), for respondent.
Harris, King, Fodera & Correia, New York, N.Y. (Michael J. DeGuida–DeRise and Laurent Chevalier of counsel), for appellants.
William Schwitzer & Associates, P.C., New York, N.Y. (Howard R. Cohen of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated March 22, 2017. The order denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against the defendant BAMA Commercial Leasing.
ORDERED that the order is affirmed, with costs.
The plaintiff was involved in a vehicular collision with an automobile operated by the defendant Paul Wesner and owned by the defendant BAMA Commercial Leasing (hereinafter BCL). The plaintiff subsequently commenced this action to recover damages for his injuries, alleging, inter alia, that the defendants were negligent in their operation, ownership, and maintenance of the BCL vehicle. Following joinder of issue, and before discovery was conducted, the defendants moved for summary judgment dismissing the complaint insofar as asserted against BCL, relying on the bar against vicarious liability for commercial lessors of vehicles set forth in 49 USC § 30106 (hereinafter the Graves Amendment). The Supreme Court denied the motion, and the defendants appeal. We affirm.
Under the Graves Amendment, the owner of a leased vehicle will not be held vicariously liable for the negligent operation of that vehicle where the owner proves that it is engaged in the business of renting or leasing motor vehicles and it was not otherwise negligent (see Gluck v. Nebgen, 72 A.D.3d 1023, 898 N.Y.S.2d 881 ; Graham v. Dunkley, 50 A.D.3d 55, 852 N.Y.S.2d 169 ). However, "[t]he Graves Amendment does not apply where, as here, a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle" ( Olmann v. Neil, 132 A.D.3d 744, 745, 18 N.Y.S.3d 105 ; see Terranova v. Waheed Brokerage, Inc., 78 A.D.3d 1040, 1041, 912 N.Y.S.2d 253 ; Collazo v. MTA–New York City Tr., 74 A.D.3d 642, 643, 905 N.Y.S.2d 30 ). Accordingly, in order to establish its prima facie entitlement to judgment as a matter of law in this action, BCL was required to prove not only that it is in the business of leasing vehicles, but also, that it did not negligently maintain the BCL vehicle (see e.g. Pacelli v. Intruck Leasing Corp., 128 A.D.3d 921, 925, 10 N.Y.S.3d 149 ; Ballatore v. HUB Truck Rental Corp., 83 A.D.3d 978, 979–980, 922 N.Y.S.2d 180 ; see generally Antoine v. Kalandrishvili, 150 A.D.3d 941, 942, 56 N.Y.S.3d 142 ; Khan v. MMCA Lease, Ltd., 100 A.D.3d 833, 834, 954 N.Y.S.2d 595 ).
BCL failed to sustain its prima facie burden, since the affidavit of its litigation specialist failed to address the plaintiff's negligent maintenance theory of liability, and the copy of the lease documents it submitted stated that Wesner was obligated to have the subject vehicle serviced "by a BCL partner dealer" according to a service schedule established by BCL. Accordingly, in the absence of a showing that BCL did not negligently maintain the vehicle, the motion for summary judgment dismissing the complaint insofar as asserted against BCL was properly denied (see Olmann v. Neil, 132 A.D.3d at 746, 18 N.Y.S.3d 105 ; see generally Anglero v. Hanif, 140 A.D.3d 905, 35 N.Y.S.3d 152 ), regardless of the sufficiency of the papers submitted in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.