Opinion
20288/07.
February 24, 2010.
The following papers numbered 1 to 36 read on this motion by defendant Avis Rent A Car System, LLC., (hereinafter, "Avis") and PV Holding Corporation (hereinafter, "PV") for an order pursuant to CPLR 3211 (a) (7) and 49 U.S.C. § 30106 dismissing the complaint and any cross-claims against Avis and PV for failure to state a cause of action; cross-motion by defendant Crummell, for an order pursuant to CPLR 3211 (a) (3) dismissing the complaint and any cross-claims against Crummell; cross-motion by plaintiffs for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiffs on the issue of liability as against all defendants; and cross-motion by plaintiffs for an order pursuant to CPLR 3025 allowing plaintiffs to amend their Bill of Particulars to add additional injuries.
PAPERS NUMBERED Notice of Motion-Affirmation-Exhibits.............................. 1-4 Notice of Cross-Motion-Affirmation-Exhibits........................ 5-8 Affirmation in Opposition-Exhibits................................. 9-11 Affirmation in Opposition-Exhibits................................. 12-14 Affirmation in Further Support..................................... 15-16 Affirmation in Reply-Exhibits...................................... 17-19 Notice of Cross-Motion-Affirmation-Exhibits........................ 20-23 Affirmation in Opposition-Exhibits................................. 24-26 Reply to Opp in Further Support.................................. 27-28 Notice of Cross-Motion-Affirmation-Exhibits........................ 29-32 Affirmation in Opposition.......................................... 33-34 Reply.............................................................. 35-36Upon the foregoing papers it is ordered that the motion by defendant Avis Rent A Car System, LLC., (hereinafter, "Avis") and PV Holding Corporation (hereinafter, "PV") for an order pursuant to CPLR 3211 (a) (7) and 49 U.S.C. § 30106 dismissing the complaint and any cross-claims against Avis and PV for failure to state a cause of action is granted; the cross-motion by defendant Crummell, for an order pursuant to CPLR 3211 (a) (7) dismissing the complaint and any cross-claims against Crummell him is granted; the cross-motion by plaintiffs for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiffs on the issue of liability as against all defendants is denied; and the cross-motion by plaintiffs for an order pursuant to CPLR 3025 allowing plaintiffs to amend their Bill of Particulars to add additional injuries is granted, for the following reasons:
According to the complaint, plaintiff decedent, Nikhail David Pinkerton, was a passenger in a rental vehicle operated by defendant Thomas Pinkerton when it was involved in a car accident on Highway 29A, 500 feet west of Fancher Road, Town of Johnstown, Fulton County, New York, on June 10, 2006. Plaintiffs claim Thomas Pinkerton, who was operating the vehicle owned by Avis and PC, that was rented from Avis by Crummell, was negligent and such caused him to lose control of the vehicle and come into contact with a fixed object. As a result of this accident, Nikhail David Pinkerton was killed.
Thereafter, plaintiffs brought the instant action seeking to recover damages. The first cause of action is brought on behalf of the deceased plaintiff and claims defendants were negligent in the operation of the vehicle and in allowing the vehicle to be so operated. The second cause of action is against Crummell and claims he negligently entrusted the vehicle to an inexperienced driver incapable of operating the vehicle in a safe and careful manner. The third cause of action (improperly entitled the second cause of action) is brought on behalf of Joan W. Pinkerton, and seeks loss of services of the deceased infant, her son.
The court shall first address the motion by Avis and PV to dismiss the complaint and any cross-claims as against them pursuant to CPLR 3211 (a)(7) and 49 U.S.C. § 30106 (the Safe, Accountable, Flexible, Efficient, Transportation Equity Act.) Plaintiff has opposed this motion.
"It is well-settled that on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts alleged in the complaint to be true and according the plaintiff the benefit of every possible favorable inference. (Jacobs v Macy's East, Inc., 262 AD2d 607, 608; Leon v Martinez, 84 NY2d 83.) The court does not determine the merits of a cause of action on a CPLR 3211(a)(7) motion (see, Stukuls v State of New York, 42 NY2d 272; Jacobs v Macy's East Inc.,supra), and the court will not examine affidavits submitted on a CPLR 3211(a)(7) motion for the purpose of determining whether there is evidentiary support for the pleading. (See,Rovello v Orofino Realty Co., Inc., 40 NY2d 633.) The plaintiff may submit affidavits and evidentiary material on a CPLR 3211(a)(7) motion for the limited purpose of correcting defects in the complaint. (See, Rovello v Orofino Realty Co., Inc., supra; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159.) In determining a motion brought pursuant to CPLR 3211(a)(7), the court "must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory ." (1455 Washington Ave. Assocs. v Rose Kiernan,supra, 770-771; Esposito-Hilder v SFX Broadcasting Inc., 236 AD2d 186.)
Under general common law principals, the negligence of the operator of a motor vehicle is imputed to its owner where the use or operation of the automobile was permissive on the part of the owner (see Vehicle and Traffic Law § 388). Thus, where the negligence of the operator of the motor vehicle is established, the owner of the vehicle is, likewise, vicariously liable. However, on August 10, 2005, Congress enacted the Safe, Accountable, Flexible Efficient Transportation Equity Act( 49 U.S.C. § 30106) (the "Graves Amendment"), which provides, in pertinent part:
(a)... 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 the 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).
Thus, the Graves Amendment explicitly pre-empts state vicarious liability laws with respect to owners of motor vehicles engaged in the business of renting or leasing those motor vehicles. The law applies to "any action commenced on or after the date of enactment of this section" (§ 30106[c]). There is no dispute that the instant action was commenced after the effective date of the Graves Amendment. Moreover, in his affidavit in support of the motion, Harry Entenberg, claims specialist employed by defendant Avis states that Avis is the title holder of the vehicle rented to Crummell and operated by defendant Pinkerton. Avis has also demonstrated that it is in the business of renting or leasing motor vehicles. In addition, no negligence or criminal wrongdoing is alleged on the part of Avis. Therefore, the Graves Amendment applies to bar the instant action as against Avis and PV. Graham v Dunkley, 50 AD3d 55 (2d Dept 2008.)
Plaintiff's contentions regarding claims of possible negligence actions on the part of Avis employees in failing to list Pinkerton as an additional insured are not part of the pleadings. Moreover, such claims are not supported by law or fact. Accordingly, since the Graves Amendment abolished vicarious liability of renters of motor vehicles based solely on ownership, plaintiffs claims against Avis and PV, which are based on vicarious liability, fail to state a cause of action. Id. Accordingly, the motion by Avis and PV pursuant to CPLR 3211 (a) (7) is granted and the complaint and any cross-claims are dismissed as against Avis and PV.
The motion by defendant Crummell to dismiss plaintiff's complaint and all cross-claims is granted. Initially, Crummell has indicated on his notice of cross-motion that he seeks to dismiss pursuant to CPLR 3211 (a) (3), which premises dismissal on the party asserting the cause of action not having legal capacity to sue. However, in the affirmation in support, the attorney states that the motion is pursuant to CPLR 3211 (a) (7), and based on the failure to state a cause of action. Accordingly, this Court shall treat it as a motion pursuant to CPLR 3211 (a) (7) and apply the standard set forth above.
In support of his motion, Crummell points to the complaint's allegations that he negligently entrusted the vehicle he rented " to an inexperienced driver incapable of operating the vehicle in a safe and careful manner. Crummell claims that plaintiffs' allegations are insufficient as a matter of law as "they failed to proffer any evidence to establish defendant Crummell had control over the vehicle and/or knowingly entrusted the vehicle to an incompetent operator." As such, Crummell argues, these allegations fail to state a cause of action against him. To support his claim, Crummell refers to portions of his and co-defendant Pinkerton's deposition testimony which indicates Crummell was either sleeping or very still in the vehicle as Pinkerton drove it immediately prior to the accident.
In opposition, plaintiffs also rely upon Crummell's and Pinkerton's deposition testimony. This testimony shows Pinkerton had only had his driver's license for three to four years as of the date of the accident and had driven about two times per week during that time. Pinkerton also stated that immediately prior to the accident, he was driving at an excessive speed. According to plaintiffs', Crummell has known Pinkerton for many years and knew or should have known that Pinkerton was an inexperienced driver. They also claim Crummell should have attempted to have Pinkerton slow the vehicle when he was driving it at an excessive speed.
To establish a cause of action under a theory of negligent entrustment, "the defendant must either have some special knowledge concerning a characteristic or condition peculiar to the [person to whom a particular chattel is given] which renders [that person's] use of the chattel unreasonably dangerous ... or some special knowledge as to a characteristic or defect peculiar to the chattel which renders it unreasonably dangerous." Cook v. Schapiro, 58 A.D.3d 664 (2d Dep't 2009) (citations omitted.) The complaint, even when the Court reads it liberally, and gives the facts alleged every benefit in plaintiffs' favor, fails to allege that defendant Crummell was aware that Pinkerton had some characteristic or condition that would cause him to drive the vehicle in an unreasonably dangerous manner. The complaint does not allege Crummell was aware that Pinkerton was in any way an inexperienced driver or that he was incapable of operating a motor vehicle in a safe and careful manner. Moreover, the evidence submitted by plaintiffs does not correct this defect in the complaint. The fact that Pinkerton had a driver's license for three to four years and drove only twice a week is not necessarily an indication of his inexperience. Nor is it an indication that he was going to drive in an unreasonably dangerous manner. Significantly, even if this Court were to accept plaintiffs' definition of inexperienced and dangerous, there is no evidence that Crummell was aware that Pinkerton was inexperienced and a dangerous driver. See, Weinstein v. Cohen, 179 A.D.2d 806 (2d Dep't 1992.) See, also, Mimoun v. Bartlett, 162 A.D.2d 506 (N.Y. App. Div. 2d Dep't 1990) Accordingly, the motion by defendant Crummell is granted and the complaint and cross-claims as against him are dismissed.
The cross-motion by plaintiffs for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiffs on the issue of liability as against all defendants is denied. Initially, based on the above, the complaint has been dismissed against all the defendants except Thomas A. Pinkerton, so the Court shall limit its analysis of this motion to Pinkerton. Plaintiff claims that Pinkerton's deposition testimony indicates immediately prior to the accident, he was driving at night, at about eighty miles per hour in a sixty mile per hour zone and the road was curvy and Pinkerton had not driven on this road before. Pinkerton opposes this motion and points to portions of his deposition testimony wherein he stated that immediately prior to the accident, a car heading in the opposite direction had approached him with high beams on and this powerful light momentarily blurred his vision. With blurred vision, he was not able to judge the curve in the road properly and he sought to compensate for his error but, he got scared and over compensated and struck the guard rail.
It is axiomatic that the Summary Judgment remedy is drastic and harsh and should be used sparingly. The motion is granted only when a party establishes, on papers alone, that there are no material issues and the facts presented require judgment in its favor. It must also be clear that the other side's papers do not suggest any issue exists. Moreover, on this motion, the court's duty is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist. See, Barr v County of Albany, 50 NY2d 247 (1980); Miceli v Purex, 84 AD2d 562 (2d Dept. 1981); Bronson v March, 127 AD2d 810 (2d Dept. 1987.) Finally, as stated by the court in Daliendo v Johnson, 147 AD2d 312, 317 (2d Dept. 1989), "Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied."
The court finds that plaintiffs have established their entitlement to judgment as a matter of law on the issue of defendant Pinkerton's negligence causing the accident. Thus, the burden shifted to Pinkerton to raise an issue of fact regarding his negligence. He claims that he was confronted with an emergency situation and as such, he was not negligent in causing the accident. The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency. See, Caristo v Sanzone, 96 N.Y.2d 172, 174 (2001.) The essence of the emergency doctrine is that, where a sudden and unexpected circumstance leaves a person without time to contemplate or weigh alternative courses of action, that person cannot reasonably be held to the standard of care required of one who has had a full opportunity to reflect, and therefore should not be found negligent unless the course chosen was unreasonable or imprudent in light of the emergent circumstances. See Amaro v City of New York, 40 N.Y.2d 30, 36 (1976.) Although the existence of an emergency and the reasonableness of a party's response to it will ordinarily present questions of fact they may in appropriate circumstances be determined as a matter of law. Bello v. Transit Auth., 12 A.D.3d 58 (N.Y. App. Div. 2d Dep't 2004.)
Here, the Court finds that Pinkerton has presented sufficient evidence to raise an issue of fact as to whether he was confronted with an emergency and not negligent in causing the accident. The presence of the car with its high beams pointing at Pinkerton and temporarily blurring his vision at a time when he was nearing a curve in the road was a condition normally not to be anticipated as common occurrences in driving. Pinkerton has shown that he was proceeding under emergency conditions and this contributed to his inability to properly estimate the curve in the road. Accordingly, the motion for summary judgment by plaintiffs is denied.
The cross-motion by plaintiffs for an order pursuant to CPLR 3025 allowing plaintiffs to amend their Bill of Particulars to add additional injuries is granted. It is well-settled that leave to amend pleadings is freely given "absent prejudice" or surprise resulting directly from the delay." McCaskey Davies Associates Inc. v. New York City Health and Hospitals Corp., 59 N.Y.2d 755 (1983). However, an amendment which is plainly lacking in merit will not be permitted. Sunrise Plaza Assocs., LP v International Summit Equities Corp., 288 AD2d 300 (2d Dept 2001.) The court need only determine whether the proposed amendment is "palpably insufficient" to state a cause of action or defense or is patently devoid of merit. Where the proposed amended pleading is palpably insufficient or patently devoid of merit, or where the delay in seeking the amendment would cause prejudice or surprise, the motion for leave to amend should be denied. If the opposing party wishes to test the merits of the proposed added cause of action or defense, that party may later move for summary judgment upon a proper showing. Lucido v. Mancuso, 49 AD3d 220 (2d Dept 2008.)
Here, there is no showing that defendant will be prejudiced by the proposed amendments. Moreover, contrary to defendant's claim, the court is satisfied that the plaintiffs have demonstrated that the proposed amendment states valid claims of additional injuries. As such, they are not palpably insufficient or totally devoid of merit. Therefore, plaintiffs' motion to amend their Bill of Particulars is granted to the extent that the Bill of Particulars may be amended as proposed in the motion. Defendant shall be given an opportunity to conduct further discovery concerning these additional claims.