Antwi v HVT, Inc.

[*1] Antwi v HVT, Inc. 2009 NY Slip Op 51937(U) [24 Misc 3d 1250(A)] Decided on September 11, 2009 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2009
Supreme Court, Bronx County

Bismark Antwi, Plaintiff,

against

HVT, Inc., AND ELIZABETH BARGELLINI, Defendant(s).



304420/08

Nelson S. Roman, J.

Defendant HVT, INC. (HVT) moves seeking an Order granting it leave to amend its answer to interpose an affirmative defense. Specifically, HVT seeks to interpose an affirmative defense pursuant to 49 United States Code §30106 (Graves Amendment) thereby barring the instant action. HVT argues that insofar as HVT's liability is solely vicarious and HVT is in the business of leasing motor vehicles, the instant action is barred by the Graves Amendment. HVT also seeks an Order granting renewal of this Court's prior Decision and Order dated February 17, 2009, wherein the Court granted partial summary judgment, on liability, in favor of plaintiff and against all defendants. Upon renewal, HVT seeks to have the Court deny plaintiff's prior motion to the extent that summary judgment was granted against HVT. HVT also seeks summary judgment over and against plaintiff and all defendants on grounds that the Graves Amendment entitles it to summary judgment. Plaintiff opposes the instant application. With regard to HVT's application seeking leave to amend its answer, plaintiff avers that the amendment sought lacks merit, that HVT waived the affirmative defense it seeks to interpose, and that nevertheless, the same is prejudicial. With regard to renewal of this Court's prior Decision and Order plaintiff opposes the instant motion on grounds that HVT has proffered no excuse for failing to seek summary judgment in response to plaintiff's prior motion. With regard to summary judgment in HVT's favor, plaintiff avers that HVT has failed to establish prima facie entitlement to summary judgment.For the reasons that follow hereinafter, HVT's motion is granted in part.

The instant action is for alleged personal injuries. The complaint alleges the following. On January 16, 2008, plaintiff was involved in an accident while operating his vehicle on Boston Road, Bronx, NY. Plaintiff, while stopped at a light at the intersection of Boston Road and Barnes Avenue, was impacted in the rear by a vehicle owned by HVT and operated by defendant ELIZABETH BARGELLINI (Bargellini). Defendants were negligent in the ownership, operation and maintenance of their vehicle, said negligence causing the accident herein and the injuries stemming therefrom.

On February 17, 2009, this Court granted plaintiff's application for partial summary judgment. The Court in its Decision and Order concluded that plaintiff had met his burden and that defendants had failed to raise any triable issues of fact.

In support of the within motion, HVT submits several documents. With the exception of an affidavit, none of the other documents are pertinent to this Court's decision.

HVT submits an affidavit from Diane Adams (Adams), who states, in pertinent part, as follows. Adams is the Manager of the Procedures and Regulations Department for American Honda Finance Corporation, the servicer of HVT's leasing program and agent of HVT for all obligations of HVT as a lessor under its lease contracts. Adams states that pursuant to an agreement dated September 27, 2007, Bargellini leased a 2008 Acura TL with a lease term of 39 months. After the [*2]lease was entered into, HVT became the owner of said vehicle. Once the vehicle was leased to Bargellini, HVT's relationship to said vehicle was that of lessor. Bargellini was not an employee or agent of HVT. HVT had no duty to repair or maintain said vehicle and said duty was that of Bargellini. On January 16, 2008, the date of the accident herein, HVT was in the business of leasing motor vehicles to the public.

HVT submits a copy of the lease agreement for the vehicle herein. Said agreement is unaccompanied by any evidentiary foundation and is thus inadmissible.

In opposition to the instant motion, plaintiff submits several documents, none of which are pertinent to the Court's decision.

Renewal

It is well settled that

An application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the Court. Renewal should be denied where a party fails to offer a valid excuse for not submitting the additional facts upon the original application.

Id. at 568; Healthworld Corporation v. Gottlieb, 12 AD3d 278 (1st Dept 2004); Walmart Stores, Inc. v. United States Fidelity and Guaranty Company, 11 AD3d 300 (1st Dept. 2004); Linden v. Moskowitz, 294 AD2d 114 (1st Dept. 2002); Louis L. Basset v. Bando Sangsa; 103 AD2d 728 (1st Dept. 1984); Holad v. Motor Vehicle Accident Indemnification Corp., 53 Misc 2d 952 (Supreme Court, Kings County 1967); American Trading Company, Inc., v. Leonard Fish, 87 Misc 2d 193 (Supreme Court, New York County 1975); Kadish v. Gilbert M. Columbo, 121 AD2d 722 (2nd Dept. 1986). Renewal is a remedy to be used sparingly and granted only when there exists a valid excuse for failing to submit the newly proffered facts on the original application. Beiny v. Wynyard, 132 AD2d 190 (1st Dept. 1987). It is well settled that a motion to renew seeking consideration of previously available but never submitted evidence, absence an excuse for the failure to previously submit evidence should be denied. Burgos v. City of New York, 294 AD2d 177 (1st Dept. 2002); Chelsea Piers Management v. Forest Electric Corporation, 281 AD2d 252 (1st Dept. 2001).

Nevertheless, the courts have carved an exception to the general rule. Motions to renew can now be granted even when all requirements for renewal are not met. Bank One v. Mui, 38 AD3d 809 (2nd Dept. 2007); Strong Brookhaven Memorial Hospital Medical Center, 240 AD2d 726 (2nd Dept. 1997). As such, motions to renew can be granted even when the newly offered evidence was in fact known and available to the movant but never provided to the Court. Id.; Tishman Construction Corporation of New York v. City of New York, 280 AD2d 374 (1st Dept. 2001); Trinidad v. Lantigua, 2 AD3d 163 (1st Dept. 2003);; Mejia v. Nanni, 307 AD2d 870 (1st Dept. 2003); U.S. Reinsurance Corporation v. Humphreys, 205 AD2d 187 (1st Dept. 1994); J.D. Structures, Inc. v. Waldbum, 282 AD2d 434 (2nd Dept. 2001); Sorto v. South Nasaau Community Hospital, 273 [*3]AD2d 373 (2nd Dept. 2000); Cronwall Equities v. International Links Development Corp., 255 AD2d 354 (2nd Dept. 1998); Goyzueta v. Urban Health Plan, Inc., 256 AD2d 307 (2nd Dept. 1998); Liberty Mutual Insurance Company v. Allstate Insurance Company, 237 AD2d 260 (2nd Dept. 1997). It is well settled that renewal with new evidence previously known and available to movant is warranted if the interest of justice and substantial substantive fairness so dictate. Bank One, supra; Trinidad, supra; Mejia, supra; Metcalfe v. City of New York, 223 AD2d 410 (1st Dept. 1996); Scott v. Brickhouse, 251 AD2d 397 (2nd Dept. 1998); Strong, supra; Goyzueta, supra. Thus, under this new rubric, a motion to renew can be granted, in the exercise of the court's discretion, even when the new evidence proffered was readily available to the moving party, such that all requirements necessary for renewal have not been met, including the failure to proffer an excuse for failing to provide previously available and known evidence with the previous motion, Trinidad, supra, or when the excuse is mere inadvertence or ignorance, J.D. Structures, Inc., supra.

In J.D. Structures, Inc., the court granted a renewal of a prior order when renewal was based on previously available evidence, known to the movant and never submitted. J.D. Structures, Inc., supra. The court had initially denied plaintiff's motion because plaintiff had failed to include evidence relative to the debt owed by plaintiff by the defendant. Id. The motion to renew was accompanied by the amount of the debt and an attorney's affirmation averring that the absence of said evidence on the previous motion was due to plaintiff's belief that the motion would be decided favorably without the same. Id. Thus, the court granted renewal despite plaintiff's failure to submit previously available and known evidence on grounds that an excuse had been proffered and because with the new evidence, plaintiff established entitlement to summary judgment. Id. In Trinidad, the court granted renewal when the same was premised upon the submission of a previously known and available expert affidavit despite the fact that no excuse was proffered for the failure to previously submit the same. Trinidad, supra.

A review of most of these cases, where the newly proffered evidence was readily available on the prior motion evidences that consideration of the new evidence changes and often times requires reversal of the court's prior order. Bank One, supra; Trinidad, supra; Metcalfe, supra; Scott, supra, Strong, supra; Goyzueta, supra. Thus, the interest of justice standard is generally applicable where the newly proffered evidence warrants relief in favor of the moving party, the party who was adversely effected by the prior motion. Id.

A motion based on a change in law is a motion to renew, which can be made at anytime prior to entry of judgment. Glicksman v. Board of Education/Central Board of Comsewogue Union Free School District, 278 AD2d 364 (2nd Dept. 2000).

Affirmative Defenses, When Required and Waiver

Some defenses must be raised in an answer by way of an affirmative defense. In particular, CPLR §3018(b) states

Affirmative defenses. A party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading [*4]such as arbitration and award, collateral estoppel, culpable conduct claimed in diminution of damages as set forth in article fourteen-A, discharge in bankruptcy, facts showing illegality either by statute or common law, fraud, infancy or other disability of the party defending, payment, release, res judicata, statute of frauds, or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated.

Thus, aside from the enumerated defenses, which must be pled as an affirmative defense, a defendant is required to raise, by affirmative defense, in an answer any matter which if not pled would likely take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading. Butler v. Catinella, 58 AD3d 145 (2nd Dept. 2008). When in doubt, a defendant should err on the side of caution and plead a questionable manner as an affirmative defense. Id. This is because the failure to plead an affirmative defense when required, results in waiver of said defense. Allen v. Matthews, 266 AD2d 782 (3rd Dept. 1999); Cransville Block Company, Inc. v. Merritt-Meridian Construction Corporation, 223 AD2d 834 (3rd Dept. 1996); see also, CPLR §3211(e) (for purposes of a motion to dismiss, several grounds upon which a motion to dismiss may be made are waived if not contained within a defendant's answer.).

The failure to plead an affirmative defense when required does not, however, always preclude the consideration of such defense in support or in defense of a motion for summary judgment. Accordingly, when a defendant fails to plead an affirmative defense, but asserts said defense in connection with a motion for summary judgment, the waiver is said to have been retracted and the court can grant or deny summary judgment based upon the never pled affirmative defense. BMX Worlwide, Ltd. v. Coppola N.Y.C., Inc., 287 AD2d 383 (1st Dept. 2001); Rogoff v. San Juan Racing Ass'n, Inc., 54 NY2d 883 (1981); Sheils v. County of Fulton, 14 AD3d 919 (3rd Dept. 2005); Lerwick v. Kelsey, 24 AD3d 918 (3rd Dept. 2005); Kirilescu v. American Home Product Corp., 278 AD2d 457 (2nd Dept. 2000); Adsit v. Quantum Chemical Corp., 199 AD2d 899 (3rd Dept. 1993); McSorley v. Philip Morris, Inc., 170 AD2d 440 (2nd Dept. 1991); International Fidelity Ins. Co. v. Robb, 159 AD2d 687 (2nd Dept. 1990). The relevant inquiry is the prejudice or surprise associated with the assertion of a never pled affirmative defense. BMX Worldwide, LTD, supra; Sheils, supra. Said prejudice or surprise is ameliorated, however, when it is shown that the plaintiff has had a full and fair opportunity to respond and oppose the defense being asserted in connection with summary judgment. Sheils, supra; Kirilescu, supra; McSorely, supra; International Fidelity Ins. Co. v. Robb, supra. Additionally, the failure to raise an affirmative defense, when required, nevertheless allows the court to consider said defense when it is shown that the issues relative to said defense have been explored throughout the course of discovery. Rogoff v. San Juan Racing Ass'n, Inc., 77 AD2d 831 (1st Dept. 1980), aff'g, 54 NY2d 883 (1981).

The Law and Standard on Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 [*5]AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently, any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York City Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999). Photographs submitted in support or in opposition to a motion for summary judgment must be authenticated and be accompanied by the requisite foundation. Read v. Ellenville National Bank, 20 AD3d 408 (2nd Dept. 2005); Wasserman v. Genovese Drug Store, Inc., 282 AD2d 447 (2nd Dept. 2001); Morales v. City of New York, 278 AD2d 293 (2nd Dept. 2000); Charlip v. City of New York, 249 AD2d 432 (2nd Dept. 1998); Saks v. Yeshiva of Spring Valley, Inc., 257 AD2d 615 (2nd Dept. 1999); Truesdell v. Rite Aid of New York, Inc., 228 AD2d 922 (3rd Dept. 1996). Authentication, with regard to photographs, generally requires evidence that the photographs being proffered fairly and accurately represent the condition depicted by said photographs. Read v. Ellenville National Bank, 20 AD3d 408 (2nd Dept. 2005); Charlip v. City of New York, 249 AD2d 432 (2nd Dept. 1998); Saks v. Yeshiva of Spring Valley, Inc., 257 AD2d 615 (2nd Dept. 1999). With regard to leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent's file. DeLeon v. Port Authority of New York and New Jersey, 306 AD2d 146 (1st Dept. 2003). An opponent's failure to object to a business record for which no foundation is laid coupled with the opponent's reliance upon the same allows the court to consider said document in support of a motion for summary judgment. Niagara Frontier Transit Metro System, Inc., 212 AD2d 1027 (4th Dept. 1995).

Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman, supra. The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must lose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. v. Habeeb, 248 AD2d 50 (1st Dept. 1997).

It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated

[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing [*6]party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).

Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have the court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact. Phillips v. Joseph Kantor & Company, 31 NY2d 307 (1972); Buckley v. J.A. Jones/GMO, 38 AD3d 461 (1st Dept. 2007); Levbarg v. City of New York, 282 AD2d 239 (1st Dept. 2001); Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641 (1st Dept. 1998). In Philips, for example, the found that evidence submitted in inadmissible form in opposition to summary judgment might be admissible at trial and if so would support plaintiff's cause of action. Phillips, supra. The Court thus denied summary judgment to the defendant. Id. Similarly, in Zuckerman, the court discounted an attorney affirmation as speculative, in that said attorney lacked personal knowledge of the facts he was proffering. Zuckerman, supra. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue of fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991). In Buckley, a careful reading evinces that the court found that plaintiff raised an issue of fact sufficient to preclude summary judgment when he submitted an accident report containing hearsay. Buckley v. J.A. Jones/GMO, 38 AD3d 461 (1st Dept. 2007). The report was submitted in admissible form as it was undisputed that the same was created in the ordinary course of business. Id. The court held insofar as said report would be admissible at trial as a business record under CPLR §4518, said report contained an inconsistent statement, and said report evinced a witness with knowledge, the same raised an issue of fact sufficient to preclude summary judgment. This Court reads the cases just cited as standing for the proposition that hearsay within documents submitted in inadmissable form, if admissible at trial, is sufficient to raise an issue of fact sufficient to preclude summary judgment. This Court still requires that submissions in opposition for summary judgment be submitted in admissible form of that evidence's inadmissibility be excused.

When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):

Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint. Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial. (Internal citations omitted).

See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick & Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); [*7]Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).

Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman, supra.

Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993). While it is clear that self serving affidavits from plaintiff him/herself, contradicting prior testimony shall be summarily disregarded, Id., it is equally clear, that third-party affidavits, from witnesses, which contradict plaintiff's prior testimony shall be disregarded as well. Branham v. Loews Orpheum Cinemas, 31 AD3d (1st Dept. 2006) (Court discounted affidavit from an eyewitness when the same "was so completely at odds with plaintiff's deposition testimony." Eyewitness' affidavit was replete with facts inconsistent with plaintiff's prior testimony and court found that the same was tailored to raise a triable issue of fact on the issue of constructive notice.); Gomez v. City of New York, 304 AD2d 374 (1st Dept. 2003); Perez v. South Park South Associates, 285 AD2d 402 (1st Dept. 2001); Philips v. Bronx Lebanon Hospital, 268 AD2d 318 (1st Dept. 2000). The rationale for disregarding self serving affidavits was articulated in Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 22 NY2d 439 (1968), wherein the court stated that while the court is generally proscribed from weighing credibility, it is free to do so when it is clear that the "issues [proffered] are not genuine, but feigned." Id. at 441.

A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano, 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).

Vicarious Liability for Lessors of Motor Vehicles

Vehicle and Traffic Law §388 states, in pertinent part, that

1. Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle [*8]in the combination, and the owners thereof shall be jointly and severally liable hereunder.

Thus, without exception, pursuant to the above mentioned statute, an owner of a motor vehicle is vicariously liable for a motor vehicle accident, caused by the use of his vehicle, when said vehicle is being operated with the owner's consent. 49 United States Code §30106 states, in pertinent part, that

(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).

Thus, pursuant to the above statute, when the owner of the vehicle is in the business of renting or leasing motor vehicles and the same was in no way negligent for the happening of an accident, said owner cannot be held vicariously liable for an accident occasioned by the use of his vehicle, even if permission to use the same was granted.

It is well settled that the Supremacy Clause of the United States Constitution preempts state law when the same is in conflict with an existing federal statute. Balbuena v. IDR Realty LLC, 6 NY3d 338 (2006); Graham v. Dunkley, 50 AD3d 55 (2nd Dept. 2008), appeal dismissed, 10 NY3d 835 (2008). A federal law preempts a state law when "Congress explicitly declares that a federal law is intended to supercede state law." Balbuena, at 356. Additionally, a federal law preempts a state law when a "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Id. at 356 (Internal citations omitted). With regards to conflict,

a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found where compliance with both federal and state regulations is a physical impossibility . . . or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (Internal citations omitted).

Whether or not the state law in question is important to a state is immaterial under the Supremacy Clause because

when there is a conflict with a valid federal law,' for 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield.'

[*9]Rudgayzer & Grant v. Cape Canaveral Tour and Travel, Inc., 22 AD3d 148, 154 (2nd Dept. 2005), citing, Free v. Bland, 369 U.S. 663, 666 (1962).

Based on the foregoing, it is clear that to the extent that VTL §388 seeks to hold all owners vicariously liable for motor vehicle accidents, it is in conflict wit 49 U.S.C. 30106, since this federal statute exempts vicarious liability as to those owners involved in the business of renting and leasing vehicles. As such, with regard to those owners, engaged in the business of leasing and renting vehicles, the federal statute preempts the state statute. Hall v. Elrac, Inc., 52 AD3d 262 1st Dept. 2008); Hernandez v. Sanchez, 40 AD3d 446 (1st Dept. 2007); Graham, supra (Congress may preempt state liability schemes in order to regulate economic activities which affect interstate commerce. Insofar as the rental and leasing of vehicles are economic activities which affect the national market; congress can regulate the same even to the extent of preempting liability for those engaged in such trade.);; Infante v. U-Haul Co. of Florida, 11 Misc 3d 529 (Supreme Court, New York County 2006); Murphy v. Pontillo, 12 Misc 3d 1146 (Supreme Court, Nassau County 2006); Stampolis v. Provident Auto Leasing Company, 586 F. Supp. 2d 88 (E.D.NY 2008); Flagger v. Budget Rent a Car System, Inc., 538 F. Supp. 2d 557 (E.D.NY 2008). Accordingly, any actions commenced after August 10, 2005, the date said federal statute was enacted, to the extent that they seek to hold an owner, in the business of leasing and renting motor vehicles vicariously liable for the actions of the operator, cannot stand. Id. Commencement means when the initial summons and complaint is filed with the court. Jones v. Bill, 10 NY3d 550 (2008).

Discussion

HVT's motion seeking renewal of this Court's prior Decision and Order dated February 17, 2009, is hereby granted.

An application to renew is one where a party seeks to have the court reconsider its prior decision on grounds that evidence then available, but for some cognizable excuse, was not known to the moving party and therefore not presented to the court for consideration. The failure to proffer a cognizable excuse for the failure to provide previously existing evidence usually mandates denial of a motion to renew. There is, however, an exception to the general rule. Motions to renew can be granted even when the newly proffered evidence was in fact known and available to the movant but never provided to the court. It is well settled that renewal with new evidence previously known and available to movant is warranted if the interest of justice and substantive fairness so dictate. Using the aforementioned standard, the court can grant renewal even if no excuse is proffered for the failure to provide previously existing and known evidence. Using the aforementioned standard law office failure has been deemed a cognizable excuse for the failure to present dispositive and previously known evidence.

In this case, HVT seeks renewal of the Court's prior Decision and Order on grounds that evidence now presented to the Court, namely Adams' affidavit, not only warrants denial of the Court's prior Decision and Order granting plaintiff summary judgment against HVT, but also warrants summary judgment in HVT's favor. HVT proffers no excuse for the failure to provide the instant evidence in opposition to the prior motion nor does HVT articulate why it previously failed [*10]to seek summary judgement based on said evidence. Notwithstanding HVT's failure to proffer an excuse for failing to previously submit the evidence now presented, evidence which by its nature, was clearly available and known to HVT, it is clear that renewal is nevertheless warranted because the interest of justice and substantial fairness so dictate. As discussed above, while a motion seeking renewal is ordinarily granted only where there exists a cognizable excuse for failing to submit previously available but unknown evidence, it is now well settled that renewal is warranted absent any excuse and even when the evidence presented was available and known to the proponent of renewal. Under these circumstances the threshold inquiry is whether the interests of justice warrant consideration of the new evidence, generally meaning that the new evidence warrants reversal of the court's prior decision.

As will be discussed below, in this case, the interest of justice warrants renewal of this Court's prior Decision and Order insofar as the new evidence presented not only warrants denial of the Court's prior Decision and Order as against HVT, but also warrants summary judgment in HVT's favor.

In support of the within motion, HVT submits Adams' affidavit, never submitted in opposition to the prior motion seeking summary judgment in plaintiff's favor and against all defendants, including HVT. Adams states that with regard to the vehicle herein, the one plaintiff alleges caused her accident, said vehicle was owned by HVT and leased by HVT to Bargellini. Adams also states that Bargellini was not an employee or agent of HVT, that HVT had no duty to maintain and repair the vehicle herein and that it was HVT's business to lease vehicles to the public.

On August 10, 2005, the Graves Amendment became law. The Graves Amendment proscribes vicarious liability against an owner of any vehicle, when said owner leases or rents the same to another, if said owner is engaged in the business of renting and leasing vehicles. Pursuant to the Graves Amendment, any actions commenced after August 10, 2005, the date said federal statute was enacted, to the extent that they seek to hold an owner, in the business of leasing and renting motor vehicles vicariously liable for the actions of the operator, cannot stand. It is clear that the Graves Amendment does not bar liability against an owner of a vehicle engaged in the business of leasing or renting vehicles when said liability is for the same's negligence. So it stands to reason, that if an owner/lessor fails to maintain a vehicle, if required to do so, said omission causing an accident, the owner lessor cannot escape liability pursuant to the Graves Amendment.

Contrary to plaintiff's contention, the Graves Amendment bars the instant action against HVT. As per Adams' affidavit HVT, in the business of leasing vehicles to the public, leased the vehicle herein to Bargellini and was thus not operating the vehicle herein. Furthermore, HVT had no duty to repair or maintain said vehicle and thus did not endeavor to do so. Accordingly, it is clear that HVT's liability in the instant action is vicarious by virtue of HVT's status as owner of said vehicle. Nothing indicates that HVT was in any way negligent in relation to the accident herein. It is thus clear that as per the Graves Amendment, HVT, as a lessor of vehicles, cannot be vicariously liable for the acts of Bargellini and thus cannot be liable to the plaintiff.

For the foregoing reasons, the Court cannot grant plaintiff partial summary judgment on [*11]liability against HVT and upon renewal must therefore vacate that portion of the Court's prior Decision and Order. Thus, upon renewal, summary judgment against HVT is hereby denied.

HVT's motion seeking summary judgement is hereby granted.

As discussed above, with Adams' affidavit, HVT establishes prima facie entitlement to summary judgment insofar as it demonstrates that it is only vicariously liable to the plaintiff herein and that said liability is barred by the Graves Amendment. Contrary to plaintiff's assertion, Adams' affidavit is competent evidence establishing HVT's burden. That a court of concurrent jurisdiction disregarded a similar affidavit is of no binding consequence to this court. This is especially true when the basis for discrediting the affidavit is the purported absence of a statement by HVT denying its negligence. Simply put, whether a party was negligent is an issue for the court to decide based upon facts stated and the applicable law. Indeed a party's conclusory statement proclaiming that it was not negligent has no legal value, since despite such a statement the facts and law can merit a conclusion to the contrary. In this case, Adams' affidavit sufficiently negates HVT's active negligence insofar as it negates any maintenance responsibility for the vehicle herein. Further, the affidavit establishes that HVT's liability stems solely from its status as owner of the vehicle herein.

Contrary to plaintiff's assertion, HVT has not waived entitlement to summary judgment pursuant to the Graves Amendment because it failed to plead the same as an affirmative defense.

The failure to plead an affirmative defense when required does not always preclude the consideration of such defense in support or in defense of a motion for summary judgment. Accordingly, when a defendant fails to plead an affirmative defense, but asserts said defense in connection with a motion for summary judgment, the waiver is said to have been retracted and the court can grant or deny summary judgment based upon the never pled affirmative defense. The relevant inquiry is the prejudice or surprise associated with the assertion of a never pled affirmative defense. Said prejudice or surprise is ameliorated however, when it is shown that the plaintiff has had a full and fair opportunity to respond and oppose the defense being asserted in connection with summary judgment.

In this case, assuming the Graves Amendment has to be raised as an affirmative defense, an issue which this Court need not reach, it is true that HVT never raised the Graves Amendment as an affirmative defense in its answer. However, insofar as HVT raises said defense in connection with the within motion, it has retracted any waiver and to the extent that plaintiff is being given a full and fair opportunity to address said defense on the merits, HVT has ameliorated any prejudice appurtenant to raising this defense for the first time by motion. Contrary to plaintiff's assertion, HVT's failure to raise the defense in opposition to plaintiff's prior motion for summary judgment does not constitute waiver or preclude HVT from raising the defense in connection with the instant motion to renew. After all, seeking to have the court consider evidence that was never presented to the court on a prior motion is the very essence of a motion to renew. Accordingly, based on the foregoing, HVT establishes entitlement to summary judgment.

Plaintiff's opposition fails to raise any issues of fact sufficient to preclude summary judgment. [*12]Plaintiff does not submit any evidence establishing that HVT's liability is anything other than vicarious. In fact, Plaintiff fails to submit any evidence whatsoever with regard to HVT's liability. Accordingly, plaintiff fails to raise any issues of fact sufficient to preclude summary judgment in HVT's favor. HVT's motion for summary judgment is thus granted.

HVT's motion seeking to leave to amend its answer is hereby denied as moot. As discussed above, the Court did, as allowed by law, consider the affirmative defense HVT sought to interpose, granting HVT summary judgement pursuant to the same. It is hereby

ORDERED that this Court's prior Decision and Order dated February 17, 2009, be hereby deemed amended to reflect that partial summary judgment is granted as to Bargellini only. It is further

ORDERED that plaintiff's complaint and any cross-claims be hereby dismissed as against HVT. It is further

ORDERED that HVT serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated :September 11, 2009

Bronx, New York

_____________________________Nelson S. Roman, J.S.C.

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