Zawatsky v Barker Materials, Ltd.

[*1] Zawatsky v Barker Materials, Ltd. 2009 NY Slip Op 50401(U) [22 Misc 3d 1132(A)] Decided on January 29, 2009 Supreme Court, Suffolk County Gazzillo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 29, 2009
Supreme Court, Suffolk County

Kerri Ann Zawatsky, as Executrix of the Estate of Lynne Bennett, Deceased, Plaintiff(s),

against

Barker Materials, Ltd., WENDI WALSH, as Executrix of the Estate of Richard Walsh, Deceased, R. LEASING CORP., MYSTIC TANK LINES CORPORATION, HAROLD CZAR BUSH. JR., as Administrator of the Estate of Czar Bush, Deceased, and CIT GROUP EQUIPMENT FINANCING, INC., Defendant(s).



26587/05



McLaughlin & Stern, LLP

Attorney for Plaintiff

By: Jon Paul Robbins, Esq.

260 Madison Avenue - 18th Floor

New York, New York 10016

FRENCH & RAFTER, LLP

Attorney for Defendant, Wendi Walsh

By: Barry Meade, Esq.

29 Broadway, 27th Floor

New York, New York 10006

HODGSON RUSS, LLP

Attorney for Defendant, Mystic Tank

60 East 42nd Street, 37th Floor

New York, New York 10165

Ralph T. Gazzillo, J.

ORDERED that the unopposed motion (seq 002) by defendant, CIT Group/Equipment Financing, Inc., for an order dismissing the complaint of Kerri Ann Zawatsky, as Executrix of the Estate of Lynn Bennett, deceased, and all cross-claims against it is granted; and it is further

ORDERED that plaintiffs' action as against defendant, CIT Group/Equipment Financing, Inc., is severed and shall continue against the remaining defendants and the caption is amended to reflect the deletion of the CIT Group/Equipment Financing, Inc. as a defendant. The third-party action commenced by CIT seeking contribution and/or indemnification is dismissed; and it is further

ORDERED that movant shall serve a copy of this Order with Notice of Entry upon counsel for the remaining parties, pursuant to CPLR 2103(b)( l), (2) or (3), within twenty (20) days of the date the order is entered and thereafter file the affidavit(s) of service with the Clerk of the Court.

Plaintiff's suit arises out of a multi-vehicle accident which occurred on June 10, 2005 on Route 27 (a/k/a Sunrise Highway), West Babylon, NY. One of the vehicles involved in the accident was a 2000 Kenworth truck with an attached trailer. The truck was registered to Mystic Tank Lines Corp. and operated by Czar Bush who died in the accident. The registered owner of the truck was Mystic Transportation, Inc. The affidavit of Alisa Micarelli, Senior Vice President of CIT, reveals that CIT did not own, maintain, repair, operate, lease, rent, or control the Kenworth truck. [*2]

CIT did own the 2000 HEIL trailer that was attached to the truck. At the time of the accident, this trailer was leased to and in the possession of Mystic Transportation, Inc., as lessee. Ms. Micarelli further asserts that the driver of the truck, Czar Bush, was not an employee or agent of CIT. Pursuant to the express terms of its lease agreement with Mystic, CIT was not responsible for the maintenance, operation, repair, or control of the trailer.

The claim against CIT, is premised on a vicarious liability theory pursuant to Vehicle and Traffic Law §388. The complaint does not allege any affirmative negligence or criminal wrongdoing by CIT. However, the application of Section 388 to lessors, such as CIT, has been preempted by federal law. On August 10, 2005, Congress enacted 49 U.S.C. § 30106(a). The statute precludes actions against rental and leasing companies based solely on vicarious liability.

Further, 49 U.S.C. §30106[c] provides that the statute applies to any action commenced on or after the date of enactment, August 10, 2005. This action was commenced on or about December 11, 2007. Accordingly, even though the accidence occurred prior to the enactment of the statute, CIT is immune from liability pursuant to its clear terms.

This statute, commonly referred to as the "Graves Amendment", provides that: (a) In general, an owner of a motor vehicle that rents or leases the vehicle to a person . . . shall not be liable under the law of any State . . . by reason of being the owner of the vehicle . . . 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 . . . is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or wrongdoing on the part of the owner (Stampolis v.

Zawatsky v. Barker Materials

Index No.: 26587/2005

Page 3 of 3

Provident Auto Leasing Co., 2008 U.S. Dist. LEXIS 91024[E. D. NY 2008]; Merchs. Ins. Group v. Mitsubishi Motor Credit Ass'n, 525 F Supp 2d 309 [E.D.NY 2007]; Hall v. Elrac, Inc., 52 AD3d 262; and Graham v Dunkley, 50 AD3d 55).

The language of the Graves Amendment covers the lease by Mystic of the CIT trailer. Courts have consistently held that the Graves Amendment prohibits states from imposing vicarious liability on owner-lessors such as CIT where the lessor is not negligent. The Graves Amendment has been upheld as a constitutional exercise of Congress' Commerce Clause powers.

In light of the foregoing, the complaint by Kerri Ann Zawatsky, as Executrix of the Estate of Lynn Bennett, deceased, against defendant, CIT, is dismissed. Further, the third-party complaint by CIT seeking contribution and/or indemnification from the third-party defendants, Barker Material & Mason Supplies LTD., Barker Material LTD., Mystic Tank Lines Corp., [*3]Mystic Transportation, Inc., Mystic Bulk Carriers, Inc., New York Truck Leasing Corp., and DeFoe Corp., is dismissed in its entirety.

Dated:____________________

RIVERHEAD, NYHon. Ralph T. Gazzillo

A.J.S.C.

FINAL DISPOSITIONNON-FINAL DISPOSITION_______