Merine v Darden
Annotate this CaseDecided on June 8, 2009
Civil Court of the City of New York, Queens County
Fernande Merine, Plaintiff(s),
against
Jermaine L. Darden and ELRAC, INC., Defendant(s).
1037-QTS-2008
Devin P. Cohen, J.
This action arises from a motor vehicle accident which took place on October 19, 2004. A claim was interposed by the plaintiff, Fernande Merine, on June 27, 2007. In his complaint, the plaintiff alleges that he sustained personal injuries when his car was struck in the rear by the car owned by the defendant rental car company, Elrac Inc. [Elrac], and driven by the defendant Jermaine L. Darden. The complaint specifically alleges that the plaintiff's injuries were a result of negligence on the part of the "defendants in that said motor vehicle was owned, operated, maintained and controlled in a careless, reckless and negligent manner, in violation of the defendants' respective duties of care..." Defendant, Elrac, now seeks to dismiss the complaint against it for failure to state a cause of action pursuant to CPLR § 3211(a)(7).
New York Vehicle and Traffic Law § 388 [VTL § 388] imposes liability on every
owner of a motor vehicle used or operated in the state for personal injury or property damage
arising out of the operation of such vehicle. However, Federal Statute 49 U.S.C. § 30106
[hereinafter the Graves Amendment] expressly preempts state laws such as VTL § 388 to
the extent that they impose liability against rental or leasing companies solely on the basis of
ownership. The Graves Amendment states in pertinent part:
(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)...
In a recent Second Department case, the court dismissed a complaint against a
leasing company on the grounds that the Graves Amendment abolished vicarious liability on the
part of long term [*2]automobile lessors based solely on
ownership (emphasis added) (see
Jones v. Bill, 34 AD3d 741 [2d Dept 2006], rev'd on other grounds, 10 NY3d 550
[2008]).
In support of its motion to dismiss, Elrac asserts that the allegations against it in the complaint are wholly predicated upon the application of VTL § 388 and that, therefore, the plaintiff's action is barred by the Graves Amendment. The plaintiff opposes the defendant's motion on the grounds that his complaint alleges negligence on the part of Elrac in its maintenance and control of the vehicle. Thus, the plaintiff argues, first, that he does state a cause of action and, second, that dismissal of the complaint would be premature because discovery has not yet taken place.
A motion to dismiss for failure to state a cause of action is a motion on the pleadings, which requires the court to analyze the sufficiency of the plaintiff's initial complaint. Here, the defendant fails to attach all of the relevant pleadings to its motion. The third page of the plaintiff's complaint is missing from the documents the defendant offers in support of its motion. Defendant also fails to attach a copy of its own answer, but does not state that its motion is one for pre-answer dismissal. Thus, the court cannot determine from defendant's papers whether the defendant asserted a failure of the plaintiff to state a cause of action or cited the Graves Amendment as a defense in its pleading. These reasons alone would be sufficient to deny defendant's motion.
Even if the defendant had attached the necessary supporting documents, the affidavit by its regional loss control manager is insufficient to authenticate the purported rental agreement between Elrac and the defendant driver as a business record. "[A] requirement of evidence of authenticity...applies to all writings whose relevancy depends upon authorship by a particular person" (Prince, Richardson on Evidence § 9-101 [Farrell 11th Ed]). Here, the affidavit states that Elrac is in the business of renting motor vehicles to the general public, that it uses rental agreements which are created in the regular course of business and that it rented the vehicle involved in the accident to Mr. Darden in the regular course of its business. However, the affidavit fails to authenticate the particular rental agreement annexed to the motion, or to state that it was created in the regular course of business. It is unclear whether this was a mere oversight, or whether the deponent did not have sufficient personal knowledge regarding the document. In either case, the purported rental agreement is not admissible as a business record. Thus, the defendant fails to establish that the subject vehicle was "rent[ed] or lease[d]...to a person," and that the collision occurred "during the period of the rental or lease" (see 49 USC § 30106[a]). Absent such a showing, the defendant fails to establish by admissible evidence that it qualifies for immunity under the Graves Amendment.
Furthermore, had the defendant's supporting documents been adequate, the court would still find that the substance of the plaintiff's complaint is sufficient on its face. The Graves Amendment confers immunity from liability upon a rental or leasing owner only if "there is no negligence or criminal wrongdoing on the part of the owner" (see 49 USC § 30106[a]). "On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v. City of New York, 9 NY3d 825, 827 [2007] [quoting Leon v. Martinez, 84 NY2d 83, 87-88 (1994)]). In this case, there is no question that plaintiff's complaint alleges that Elrac was negligent in its maintenance of the vehicle in question.
Finally, where the plaintiff's complaint, standing alone, would survive a motion to dismiss, but a defendant submits evidentiary material in support of its motion, "[that material] may be [*3]considered in assessing the viability of a complaint, although the complaint should not be dismissed unless the defendant demonstrates that a material fact alleged by the plaintiff is not a fact at all and that no significant dispute exists regarding it'" (Pechko v. Gendelman, 20 AD3d 404, 406-407 [2d Dept 2005] [quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). In this case, the defendant submits an affidavit of its regional loss control manager attesting to Elrac's status as a rental car company and to the use of some documents, although not the annexed document, in the ordinary course of its business, as well as an inadmissible copy of the purported rental contract. Thus, the instant case is distinguished from a case such as Vedder v. Enterprise Rent-A-Car, (18 Misc 3d 1142[A], 2008 NY Slip Op 50408 [2008]) wherein the defendant's motion to dismiss was granted based on a more comprehensive affidavit by the defendant's regional loss control manager. The Vedder affidavit stated, among other things, that the deponent had searched the maintenance records for the subject vehicle and found that there were no maintenance or repairs performed prior to the accident, that no maintenance or repairs were scheduled, that there had been no complaints by prior renters, and that the vehicle had been inspected for damage and performance problems between rentals.
This defendant failed to provide an affidavit or any other evidence indicating that it maintained the vehicle in a non-negligent manner. Accordingly, the "[d]efendant makes no showing that, as a matter of law, a claim for negligent maintenance does not survive the Graves Amendment, and Defendant makes no showing that, as a matter of fact, it properly maintained the subject vehicle" (Luma v. ELRAC, 19 Misc 3d 1138A, 2008 NY Slip Op 5106U [2008]).
For the foregoing reasons, defendant Elrac's motion to dismiss is denied. This constitutes the
decision and order of the court.
__________________________
Date___________________________________
HON. DEVIN P. COHEN
Judge, Civil Court
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