Opinion
107547/07.
Decided January 26, 2010.
SIM PARKS, LLP, NEW YORK, NY, ATTORNEY FOR THE PLAINTIFF.
JIFFY TRUCKING CO. — Prose, CARLSTADT NJ 07072-, ATTORNEY FOR THE DEFENDANT .
SCHOENFELD MORELAND, P.C., NEW YORK, NEW YORK, ATTORNEY FOR THE DEFENDANTS.
Motion sequence 002 is resolved as follows:
On or about March 5, 2005, plaintiff commenced an action ("the First Action"), seeking damages for injuries allegedly sustained in a motor vehicle accident with a tractor-trailer, which occurred on September 11, 2004. Plaintiff commenced the first action against defendant Angel A. Cordona Rivera, the tractor-trailer driver and defendants Jose Benitez a/k/a Jose L. Ponce, Benite Jose, Jose Lucio Ponce, Jose L. Benitez and the Ponce Dynasty Corporation, the tractor-trailer owners, pursuant to the concept of vicarious liability pursuant to New York Vehicle and Traffic Law § 388. On or about February 2, 2006 defendants answered the complaint in the First Action and issue was joined.
On or about May 30, 2007, plaintiff commenced the instant action,("the Second Action"), against the same defendants as in the First Action, and added defendant Jiffy Trucking Company. In the Second Action, plaintiff moved for a default judgment as against Jiffy Trucking Company. Defendant Jiffy Trucking Company, moved to dismiss the complaint as against it, pursuant to 49 U.S.C. § 30106, known as the Graves Amendment'" or in the alternative to permit Jiffy Trucking Company to answer the complaint in the Second Action. The remaining defendants moved to dismiss the complaint, pursuant to CPLR § 3211 (a).
In support of their motion to dismiss, defendant Jiffy Trucking Company contended that it was protected under 49 U.S.C. § 30106, the Graves Amendment. The Graves Amendment is a federal law that preempts the state law on vicarious liability for businesses that own "a motor vehicle that rents or leases [a] vehicle to a person (or an affiliate of the owner"( 49 U.S.C. § 30106).
Court Order dated February 8, 2008, (Justice D. Kaplan), granted defendants Angel A. Cordona Rivera, Jose Benitez a/k/a Jose L.Ponce, Benite Jose, Jose Lucio Ponce, Jose L. Benitez and Ponce Dynasty Corporation motion's to dismiss the complaint as against them, in the first action, pursuant to CPLR 321 1 (a)(4) . Court order dated February 8, 2008, further ordered, that the issue of whether the remaining defendant Jiffy Trucking Company, falls under 49 U.S.C. § 30106, known as the "Graves Amendment", be referred to a Special Referee to hear and report with recommendations as permitted by CPLR § 431 7,
Court Order dated February 8, 2008, provided, "CPLR 3211 (a)(4) provides that a party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . there is another action pending between the same parties for the same cause of action . . .' Accordingly, since the First Action which is pending in this Court under Index No. 4117713-2004 names six of the same parties as in the Second Action, defendants Angel A. Cordona Rivera, Jose Benitez a/k/a Jose L. Ponce, Benite Jose, Jose Lucio Ponce, Jose L. Benitez and The Ponce Dynasty Corporation, the Second Action was dismissed as to those defendants.
The matter was heard by Sue Ann Hoahng, Special Referee, who thereafter issued a Report and Recommendation, dated September 2, 2008, which set forth her findings of fact and conclusions of law and recommended that the Graves Amendment is not applicable in the instant case.
On or about October 24, 2008, defendant Jiffy Trucking Company moved to reject the special referee's report dated September 2, 2008, pursuant to CPLR § 4403. Court order dated July 23, 2009, denied such motion.
Defendant Jiffy Trucking Company now moves for an order, pursuant to CPLR § 2221, granting renewal and reargument of court order dated July 23, 2009, denying defendant Jiffy Trucking Company's motion to reject the referee's report.
Court order dated July 23, 2009, confirmed the Special Referee's Report and Recommendation, dated September 2, 2008. The Court based such decision primarily upon the Owner-Operator Agreement between Jiffy Trucking Company and Ponce Dynasty Corporation, which states in part:
See court order dated July 23, 2009, page 5.
". . . Jiffy is . . . engaged in the business of providing delivery equipment and delivery services . . .".
As such, the Court determined that Jiffy trucking Company is in the business of leasing delivery equipment and not motor vehicles, thus, the Graves Amendment was inapplicable in this case.
DISCUSSION
The Graves Amendment, 49 U.S.C. § 30106, provides that:
an owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), 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).
The New York Vehicle and Traffic Law § 388, imposes vicarious liability upon the lessor of a vehicle for the negligence of the driver. In certain circumstances the Graves Amendment preempts the Vehicle and Traffic Law § 388. By the Application of the Supremacy Clause of Article IV of the United States Constitution the New York State Court of Appeals has held to enforce the preemption of Vehicle and Traffic Law § 388 by the Graves Amendment (U.S.C.A. Const. Art. VI cl. 2; Hernandez v Sanchez , 40 AD3d 446 [1 Dept 2007; Graham v Duckley, 50 AD3d 55 [2 Dept 2008] , appeal dismissed, 10 NY3d 835; Johnson v Kling , 48 AD3d 637 [2 Dept 2008], reversed on other grounds, 10 NY3d 887;]; Kuryla v Halabi , 39 AD3d 485 [2 Dept 2007]; Jones v Bill , 34 AD3d 741 [2 Dept 2006], reversed on other grounds, 10 NY3d 550).
In support of its motion to renew and reargue defendant Jiffy Trucking Company argues that under 49 U.S.C.A. § 13102, the term motor vehicle is defined as a:
vehicle, machine, tractor, trailer, or semi-trailer, propelled or drawn by mechanical power . . .
Defendant Jiffy Trucking Company argues that at the time of the subject accident, Jiffy Trucking Company's trailer was attached to Ponce Dynasty Corporation's tractor, thus being "drawn by mechanical power" . As such, the trailer is a motor vehicle pursuant to 49 U.S.C.A. § 13102 and the Graves Amendment is applicable
In opposition, plaintiff argues, inter alia, that Jiffy Trucking Company's "delivery equipment" does not qualify as a trailer as defined under the Graves Amendment. Accordingly, defendant Jiffy Trucking Company is not in the business of leasing motor vehicles and is not afforded the protection under the Graves Amendment.
It is undisputed that Jiffy Trucking Company is an affiliate of General Trading Company Grocery and Dairy and is the owner and lessor of the trailer, that was leased to defendant Ponce Dynasty Corporation and attached to the tractor that was operated by defendant Rivera, at the time of the subject accident. Thus, pursuant to 49 U.S.C.A. § 13102, defendant Jiffy Trucking Company's trailer qualifies as a motor vehicle and Jiffy Trucking Company is an "affiliate of the owner of the tractor-trailer, engaged in the business of renting or leasing motor vehicles" ( 49 U.S.C. § 30106).Accordingly, the plaintiff's claims against Jiffy Trucking are "barred by operation of the Graves Amendment" and the case must be dismissed as to defendant Jiffy Trucking Company ( Berkan v. Penske Truck Leasing Can., Inc., 535 F. Supp. 2d 341, 345-346 [WDNY. 2008]; see Flagler v Budget Rent A Car System, Inc., 538 F. Supp. 2d 557 [EDNY 2008]).
Defendant Jiffy Trucking Company has demonstrated that, in the Court's order dated July 23, 2009, the Court may have overlooked or misapprehended a matter of fact or law which would have changed the determination of the prior motion ( see CPLR 2221[d][2]). Accordingly, the report dated September 2, 2008, of Sue Ann Hoahng, Special Referee, is rejected.
Upon the foregoing papers, it is
ORDERED that motion by defendant Jiffy Trucking Company, to renew its motion to reject Special Referee's Report dated September 2, 2008, is granted, and it is further,
ORDERED that this case is dismissed as to defendant Jiffy Trucking Company, only, pursuant to 49 U.S.C. § 30106; and it is further,
ORDERED that defendant Jiffy Trucking Company shall serve a copy of this order with notice of entry upon all parties, the County Clerk, and the Clerk of the Trial Support Office within 45 days of entry.
This constitutes the Decision and Order of the Court.