Ferraro v Reid
Annotate this Case
Download PDF
Ferraro v Reid 2012 NY Slip Op 32513(U) September 24, 2012 Sup Ct, Suffolk County Docket Number: 28760-08 Judge: Denise F. Molia Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] COPY Index No 28760-08 SUPREME COURT - STATE OF NEW YORK IAS. Part 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE ~-.MOLL<\. Justice ---------------------- GENNARO FERRARO and PHYLLIS FERRARO, CASE DISPOSED: NO MOTION RJD: 10/27111 SUBMISSION DATE: 5/25112 MOTION SEQUENCE No.: 007 MOT D 008 MD Plaintiffs, - against PAUL REID JR., JORGE ROMAN, ENTERPRISE RENT-A-CAR COMPANY, and ELRAC, INC., Defendants. ATTORNEY FOR PLAINTIFF Salenger Sack Kimmel & Bavaro LLP 180 Froehlich Farm Boulevard Woodbury, New York 11797 Sibcn & Siben LLP 90 East Main Street Bay Shore, New York 11706 ATTORNEYS fOR DEfENDANT Marks O'Neill O'Brien & Courtney PC 530 Saw Mill River Road Elmsford, New York 10523 See Annexed List Upon the following papers filed and considered relative to this matter: Notice of Motion dated September 26, 2011; Affirmation in Support dated September 26, 2011; Exhibits A through N annexed thereto; Affirmation in Opposition dated November 8, 2011; Exhibits A through G annexed thereto; Reply Affirmation dated November 29, 2011; Exhibits A and B annexed thereto; Notice of Cross Motion dated November 7,2011; Affirmation dated November 2,2011; Exhibit A annexed thereto; Affirmation in Opposition dated December 30,2011; Exhibits A through G annexed thereto; Affirmation in Opposition dated January 5, 2012; Reply Affirmation dated January 12, 2012; and upon due deliberation; it is ORDERED, that the pOliion of the motion by defendants Enterprise Rcnt-A-Car Company, and Elrac, Inc., pursuant to CPLR 3211,3212, and 49 U.S.c. §30106, for an Order dismissmg all claims and/or granting summary judgment on behalf of moving defendants, as the Federal Transportation Equity Act precludes any such claims against Elrace, Inc., is denied; and it is further ORDERED, that the portion of the motion by defendants Enterprise Rent-A-Car 1 [* 2] Company, and Elrac, Inc., pursuant to CPLR 3211, for an Order dismissing the Second cause of actlOn for negligent entrustment, is granted: and it is further ORDERED, that the cross motion by defendant, Jorge Roman, pursuant to CPLR 3212, for an Order directmg the entry of summary Judgment in favor of cross moving defendant, and disl111SS1l1g Complaint against cross movant, based upon the plaintlff"s failure to demonstrate the :1 proper clal1ll of negligence agal11sthim Slllce he was neither the owner nor operator of any of the vehicles mvolved in the subject accldent, is denied. The Complaint alleges that the plaintiff, a police otTicer, sustained personal inJunes and ,xonomic damages as a result of a motor vehicle accident which on October 2,2008, at dpproximately 5:44 a.111. t appears that while during the course of his employment, the plallltitf's I vehicle \vas struck in the rear by a motor vehIcle owned by defendant Elrac, Inc./Enterprise RentA-Car, rented to defendant Jorge Roman, and operated by defendant Paul Reid, J1'. Although the subject vehlc1e had been rented to Roman, the driver at the time of the acclclent was Reid, who subsequently pleaded b:ruiltyto the charges of assault in the second degree, operating a motor vehicle under the intluence of alcohol, reckless endangerment in the second degrce, and aggravated unlicensed operation of a motor vehicle 111 second degree, all the 111 connection with the subject accident. Reid, whose blood alcohol content level exceeded .08, testified that he was asleep behind the wheel of the vehIcle when it struck the plaintiffs vehicle. There IS evidencc that the vehicle he was operating was proceeding at a speed of 98 miles per hour upon impact. Roman testified that at the time of the accident he was asleep in the vehicle. On August 10, 2005, the Federal Transportation Equity Act of 2005 was enacted. The portion of this bill codified at 49 U.S.c. §30106, known as the "Graves Amendment", provides in relevant 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 hable 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 penod of the rental or lease, if (I) the owner (or an affiliate of the owner) is engagcd 1J1 the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or cnminal wrongdoing on the part of the owner (or an affiliate of the owner) . (C) Applicability and EffcctJVCDatc - Notwithstanding any other provision oflaw, this section shall apply with respect to any action commenced on or after the date of enactment of this section WIthout regard to whether the ha1111hat is the subJcct of the actton, t or the conduct that caused the ha1111, occuned before such date of enactment. 2 [* 3] See 49U.:3.C. 030106 (2005). Congress enacted the Graves Amendment for the explicIt PUlVOSC of abolishing vIcarious liability, such as that imposed by New York State Vehicle and Traffic Law §388, un entIties ,:ngaged in the business of renting and leasing motor vehicles. The effect of the Amendment is that the owners of vehicles in New York who arc in the busmcss ofrcntmg motor vehicles, cannot be held VIcariously liable for the negligent acts of the drivers of those rented vchlcles solely based upon the fuel that they hold title to the motor vehicle. See, Infante v. U-Haul Co. of Florida, 11 Mise.3d 529, 815 N.Y.S.2d 921. However, the c1anl1s 111 the instant action sound, not in vicarious liabIlity, but In negligence and negligent cntmstmcnt and are pemlitted to proceed despite the Graves Amendment if negligence Of criminal wrongdomg can be demonstrated on the part of the owner (or affilwte of the owner) of the vehicle. Concerning the cause of action sounding 111 negligence, there has been testimony which could support a finding that the vehicle was leased to Roman wlth knowledge by Enterprise/Elrac that mechanical rcpmrs may have been necessary. At his deposition, Roman testified that prior to the accident, thc subjcct vehicle was "unbalanced", the tires were "unbalanced", the velllcle was going to one side as opposed to the other, and it was driving "funny". Roman also testifi.cd that he notified Enterprise that the vehicle may have been in need of repair. However, it appears that he never made an appointment to bring the vehicle III for repair. It is also noted that in a related matter in which Roman is the plaintiff, he has provided a contradictory statement concemmg the mechanical operation of the vehicle prior to the accldent. Enterprise denies that it was ever contacted by Roman conceming the vehicle. The defendants concede that beginning approximately six months pnor to the date of the accident, the vehicle had been repaired on at least four occasions, including a computer balancing of the tires less than four months prior to the accident. The issues of fact as to whether the subject vehicle was in need of repairs when rented to Roman, and if so, whether defendants knew that the vehicle reqUlred repaJrs, or whether the vehicle had been maintained in a non-negligent manner prior to rental to Roman, preclude summary Judgment untll there is detem1ination as to whether the defendants have any comparative neghgence in this mattef. See, Brubaker v. Houseknecht, 83 A.D.3d 1539, 92] N.Y.S.2d 607. It would also need to be detennined whether the alleged balance issue, or any of the repairs previously made to the vehicle by defendants, was the proxlmate cause of the accident. To establish a cause of action under a theory of negltgent entrustment, "the defendant must elther have some special knowledge concerning a characteristic or condition peculiar to the person to whom a partlcular chattel is given which renders that person's use of the chattel unreasonably dangerous or some specJal knowledge as to a characteristic or defect peculiar to the chattel which renders It unreasonable dangerous." See, Zara v. Pcrzan, 185 A.D.2d 236, 237, 586 N.Y.S.2d 139. In theIr opposition to the motion, the plaintiffs infer that Roman may have had a bad driving record or was impaired at the time of the rental, although no proof has been adduced to demonstrate same. Since the adoption of the CJraves Amendment, this State has not determined that a rental car facility is obligated to pcrfonn a more extensive background eheck mtn a renter's 3 [* 4] driving history at the time of the rental, other than verifying the expiration dated and photoi:,'Iaph appearing on the license. See, Byme v. Collins, 929 N.Y.S.2d 92; Sigaran v. Elrac, 22 Misc.3d 1101 (A), 875 N.Y.S.2d 824; Vedder v. Cox, 18 Mrsc.Jd 1142(A), 859 NYS.2d 900 There is 110 evidence to sugge.st that the defendants failed to verify the expiration date and photograph on Roman's licensc. Inasmuch as neither Elrac nor Enterprise arc obligated to research its customers drivlllg Imtones beyond veri fying the existence of a valid driver's license, plaintiffs' cause of J.ction for negiJgent entrustment against said defendants must be dismissed. See, Tedesco v. Wamer, 2009 N.Y. Misc. LEXIS 6499; 2009 NY Sl1p Op 33129U. Defendant Jorge Roman seeks a dismissal of the CompIa1l1t as against him, maintal11l11g that he was only the renter of the vehicle and was not the driver at the time of the accident, and therefore did not owe a duty to the plaintiffs. However, the evidence adduced indicates that both Roman and Reid had been consuml11g alcoholic beverages pnor to the accident, and there is "(estimony to mdicate that Roman did, or should have known that Reid was intoxicated and ::;hould not have been pcrmltted to operate the vehicle. Such detclmmations oftact must be rendered by the jury at tna\. The foregoing Dated: September constitutes the Order of this Court. iDLl:leti1.. F. w.wr.,' 24, 2012 HON. DENISE 4 F. MOLIA J.S.c. [* 5] Attorneys for Defendants Cannan Callahan & Ingham 266 Mall1 Street Fallningdale, New York 11735 Nassau County Attorney One West Street Mineola, New York 11501 Brand Glick & Brand 6000 Old Country Road Suite 440 Garden City, New York 11530 Peknie & Peknie 1005 W cst Beech Street Long Beach, New York 11561 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
