ZWIBEL v. MIDWAY AUTO. GROUP

Full title: MARCIA ZWIBEL, Plaintiff, v. MIDWAY AUTOMOTIVE GROUP, HELMS BROS. INC.…

Court: Supreme Court of the State of New York, Queens County

Date published: Mar 7, 2011

2011 N.Y. Slip Op. 30509 (N.Y. Sup. Ct. 2011)

2011 N.Y. Slip Op. 50308

Opinion

14754/2010.

March 7, 2011.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Hon. ROBERT J. MCDONALD, Justice.

The following papers numbered 1 to 6 were read on this motion by defendant MIDWAY AUTOMOTIVE GROUP for an order pursuant to CPLR 3211 (1), (5), (7), (8) and CPLR 3212 dismissing the plaintiff's complaint against defendant MIDWAY AUTOMOTIVE GROUP on the ground that under federal law a leasing/rental company vehicle owner can not be held to be vicariously liable for the alleged negligent acts of the renter:

Papers Numbered Notice of Motion-Affidavits-Exhibits................. 1 — 2 Affirmation in Opposition-Affidavits-Exhibits........ 3 — 4 Reply Affirmation-Exhibits........................... 5 — 6

On October 7, 2008, plaintiff, Marcia ZWIBEL, was involved in a motor vehicle accident with a vehicle operated by the defendant Kevin M. Henderson, Jr., and owned by defendant Midway Automotive Group ("Midway"). The accident occurred on Utopia Parkway in the vicinity of Underhill Avenue, Queens County, New York.

Plaintiff commenced this action by way of a summons and complaint filed on June 9, 2010, to recover damages for personal injuries allegedly sustained in the subject motor vehicle accident. The basis for a claim against Midway is Vehicle and Traffic Law § 388, which imposes vicarious liability upon the lessor of a vehicle for the negligence of the driver.

Defendant Midway moves, prior to filing an answer, and prior to examinations before trial, for an order dismissing the complaint against it, pursuant to CPLR §§ 3211 and 3212 alleging that under the Federal Transportation Equity Act of 2005, 49 U.S.C. § 30106, commonly known as the "Graves Amendment, a leasing/rental company vehicle owner can not be held to be vicariously liable for the alleged negligent acts of the renter, its employees or agents. Midway asserts that the Graves Amendment preempts New York Vehicle and Traffic Law § 388.

In support of its motion, Midway submits a copy of the title of the subject vehicle, a 2008 Acura RDX, dated July 16, 2008, showing that title was initially with "Acura of Ramsey," an Acura dealer in Ramsey, New Jersey. In his affidavit, dated July 20, 2010, David M. Smith, Jr., the Director of Business Development for Midway, states that Midway was the owner of the vehicle involved in the accident of October 7, 2008. He also states that Midway is in the business of leasing and renting automobiles. On August 25, 2008, Midway rented four Acura RDX vehicles including the subject vehicle to Transcend Creative Group for a three month period at a rental cost of $10,550.00 per vehicle.

On August 28, 2008, Midway contracted with Acura of Ramsey to supply the four Acura RDX vehicles to Transcend Creative Group (Transcend). On August 6, 2008, Transcend entered into a contract with Mercedes-Benz USA, LLC to provide the four vehicles to Helms Mercedes-Benz for a vehicle training program. Smith's affidavit states that while Midway was the titled owner of the vehicle in question, it was Transcend and not Midway that rented the vehicle to Helms Mercedes-Benz on August 6, 2008. The driver of the Acura, Kevin Henderson, was an employee of Helms Mercedes-Benz and was not an employee of Midway.

In his affidavit in support of the motion, Midway's counsel states that pursuant to the Graves Amendment, as Midway was a rental company, it is not vicariously liable under VTL § 388 and therefore, the complaint fails to state a cause of action.

In opposition, the plaintiffs aver that because there is a claim of negligent maintenance asserted against Midway that the Graves Amendment does not apply. The Graves Amendment, regarding rented or leased motor vehicle safety and responsibility, bars vicarious liability actions against professional lessors and renters of vehicles, as would otherwise be permitted under Vehicle and Traffic Law § 388 (see Gluck v Nebgen, 72 AD3d 1023 [2d Dept. 2010]; Graham v Dunkley, 50 AD3d 55 [2d Dept. 2008]; Hernandez v. Sanchez, 40 AD3d 446 [1^st Dept. 2007]).

However, the courts have held in this regard that although the Graves Amendment bars negligence claims against car-rental companies based solely on a theory of vicarious liability (see Graham v Dunkley, supra;Hernandez v Sanchez, supra.), a claim based upon negligent maintenance is not barred by the Graves Amendment since the statute does not absolve leasing companies of their own negligence (see Collazo v MTA-New York City Tr., 74 AD3d 642 [1^st Dept. 2010]; Novovic v Greyhound Lines, Inc., 2008 US Dist LEXIS 94176 [ED NY 2008]). The plaintiff also argues that dismissal of the complaint would be premature because discovery has not yet taken place.

The Transportation Equity Act of 2005 ( 49 USC § 30106) provides in pertinent part:

§ 30106 Rented or leased motor vehicle safety and responsibility.

"(a) In general. — 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 plaintiff contends that as the complaint states that defendant was negligent in the ownership, management and maintenance of it motor vehicle and as Midway failed to present any evidence that it maintained its vehicle in a non-negligent manner, Midway has failed to make a prima facie showing that the claim for negligent maintenance does not survive.

In reply, the defendant contends that based upon the leasing history described above, Midway was not the entity which rented the vehicle in question to Helms Mercedes-Benz on August 6, 2008 and that they were in fact two leases removed from the lessee and employer of driver Kevin Henderson, Helms Mercedes-Benz. Further, the defendant contends, based upon the affidavit of David Smith dated February 17, 2011, that there is no issue as to maintenance as Mr. Smith searched the records and found that there were no complaints with regard to the maintenance of this vehicle. Further, the exhibits submitted by Midway indicate that the vehicle was factory new when it was leased by Midway to Transcend.

Upon review and consideration of the defendant's motion, the plaintiffs's affirmation in opposition and the defendant's reply thereto this court finds as follows:

It has now been determined that the Graves Amendment preempts all state statutes to the extent they hold those owners in the business of renting or leasing motor vehicles vicariously liable for the negligence of drivers, except when there is negligence or criminal wrongdoing on the part of the owner.

There is no dispute that Midway is a leasing company and therefore cannot be held liable for leasing the vehicle in question. The only remaining issue is whether the plaintiff by alleging improper maintenance in the complaint, has raised a question of fact as to whether Midway can still be held liable for failure to properly maintain the vehicle involved in the accident. It has been held in this regard that absent some evidence of a lessor's failure to properly maintain a vehicle which it has expressly agreed to maintain pursuant to a lease agreement, or some similar active negligence on the part of the lessor, § 30106(a)(2) the negligence clause, is rarely applicable and should be cautiously applied in light of Congress' clear intent to forestall suits against vehicle leasing companies(see Dubose v. Transp. Enter. Leasing, LLC, 2009 U.S. Dist. LEXIS 5693(cf. Collazo v. MTA-New York City Tr., 74 A.D.3d 642 [1^st Dept.]; Terranova v Waheed Brokerage, Inc., 78 A.D.3d 1040 [2d Dept. 2010]).

Thus, although a claim of negligent maintenance can survive the Graves Amendment, here the defendant submitted evidence showing that the car in question was factory new with an odometer reading of 12 miles at the time it was leased to Transcend. Further, Smith states in his affirmation that there were no complaints regarding the maintenance of this vehicle (seeVedder v. Cox, 18 Misc. 3d 1142A (Sup.Crt.Nassau Co. 2008]). Thus, under the circumstances of this case, the defendant has demonstrated that there can be no significant dispute regarding maintenance of the vehicle (seePechko v. Gendelman, 20 AD3d 404 [2d Dept 2005]).

Moreover, the plaintiff has failed to allege facts sufficient to show that Midway was culpable for improper maintenance of the vehicle or that the defendant had not met its financial and insurance obligations. The plaintiff's hope that further discovery would reveal the existence of triable issues of fact regarding maintenance of the vehicle is insufficient to delay determination the motion (see Talon Air, Inc. v. Madden, 2011 NY Slip Op 501 [2d Dept. 2011]). The plaintiff failed to offer an evidentiary basis to suggest that further discovery may lead to relevant evidence (see Woodard v Thomas, 77 AD3d 738 [2d Dept. 2010]).

Therefore, the defense motion to dismiss the plaintiff's claims and all cross-claims and counter claims if any, based solely on vicarious liability against the defendant, is granted pursuant to CPLR 3211 (a)(2), (7) as those claims fail to state a cause of action (see Gluck v Nebgen, 72 AD3d 1023 {2d Dept. 2010]).

Accordingly, it is hereby

ORDERED, that the Clerk of Court is directed to enter judgment in favor of defendant MIDWAY AUTOMOTIVE GROUP dismissing the complaint as to defendant MIDWAY AUTOMOTIVE GROUP only.