Opinion
2021-50594
06-25-2021
Vixan Cab Corp., Appellant, v. Chelsea Rental Corp., Respondent, Samuel McMillan, Defendant.
Eppinger, Reingold & Korder (Kevin P. Caldwell of counsel), for appellant. The Law Office of Diana Rubin, for respondent (no brief filed). Samuel McMillan, defendant pro se (no brief filed).
Unpublished Opinion
Eppinger, Reingold & Korder (Kevin P. Caldwell of counsel), for appellant.
The Law Office of Diana Rubin, for respondent (no brief filed). Samuel McMillan, defendant pro se (no brief filed).
PRESENT:: WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ
Appeal from an order of the Civil Court of the City of New York, Queens County (Lourdes M. Ventura, J.), entered September 12, 2019. The order granted a motion by defendant Chelsea Rental Corp. to dismiss the complaint insofar as asserted against it.
ORDERED that the order is affirmed, without costs.
Plaintiff commenced this action to recover for damage to its vehicle sustained in an automobile accident with a vehicle owned by defendant Chelsea Rental Corp. (defendant) and driven by Samuel McMillan. Defendant interposed an answer in September 2015 which did not set forth an affirmative defense based upon 49 USC § 30106, also known as the Graves Amendment. Following defendant's substitution of its counsel, defendant moved to dismiss the complaint insofar as asserted against it on the ground that it had leased the vehicle involved in the accident and, thus, the Graves Amendment precluded plaintiff from maintaining the instant action against it. By order entered, the Civil Court granted defendant's motion.
"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" (Casine v Wesner, 165 A.D.3d 749, 749 [2018]; see 49 USC § 30106; Graham v Dunkley, 50 A.D.3d 55, 58 [2008]). While defendant failed to raise the Graves Amendment as an affirmative defense in its answer, after retaining new counsel, defendant promptly moved to dismiss the complaint. An unpleaded defense may serve as the basis for the dismissal of a complaint in the absence of surprise or prejudice to the opposing party (see Sullivan v American Airlines, Inc., 80 A.D.3d 600, 602 [2011]).
Here, plaintiff failed to establish surprise or prejudice in this purely legal inquiry (see Allay Med. Servs., P.C. v Nationwide Ins., 70 Misc.3d 138 [A], 2021 NY Slip Op 50086[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]), since defendant's corporate name, Chelsea Rental Corp., should have alerted plaintiff to the possibility that defendant was the lessor of the vehicle involved in the accident and, thus, protected by the Graves Amendment. Similarly, plaintiff's papers failed to allege any specific prejudice (see Barrett v Kasco Constr. Co., 84 A.D.2d 555, 556 [1981], affd 56 N.Y.2d 830 [1982]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc.3d 137 [A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) or surprise (see Rogoff v San Juan Racing Assn., 54 N.Y.2d 883, 885 [1981]; J.K.M. Med. Care, P.C., 52 Misc.3d 137[A], 2016 NY Slip Op 51071[U]; Renelique v State-Wide Ins. Co., 50 Misc.3d 137 [A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
Accordingly, the order is affirmed.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.