Cassidy v DCFS Trust

Cassidy v DCFS Trust 2011 NY Slip Op 08466 Decided on November 22, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 22, 2011
Tom, J.P., Saxe, Sweeny, Richter, Manzanet-Daniels, JJ.
6112 13369/08

[*1]Joseph J. Cassidy, Plaintiff-Respondent,

v

DCFS Trust, Defendant-Appellant, Gilad Realty, Inc., et al., Defendants.




Arnold S. Kronick, White Plains, for appellant.
Scott Baron & Associates, P.C., Howard Beach (Michael
Szechter of counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered January 18, 2011, which, to the extent appealed from as limited by the briefs, denied that branch of defendants DCFS Trust and Gilad Realty, Inc.'s motion for summary judgment dismissing the complaint against DCFS Trust, unanimously affirmed, without costs.

DCFS Trust, as movant, failed to meet its initial burden to show prima facie entitlement to summary judgment (see CPLR 3212[b]; Frees v Frank & Walter Eberhart L.P. No.1, 71 AD3d 491 [2010]), inasmuch as it did not offer competent proof that it was engaged in the business or trade of leasing or renting motor vehicles (including the vehicle driven by the individual defendant), as would entitle it to immunity from vicarious liability for injury caused by the individual defendant (see 49 USC § 30106 [Graves Amendment]; cf. Ballatore v HUB Truck Rental Corp., 83 AD3d 978 [2011]). DCFS Trust also failed to present competent proof that the individual defendant was not its employee (see generally Gogos v Modell's Sporting Goods, Inc., 87 AD3d 248, 253 [2011]). The testimony of the president of defendant Gilad Realty, the company that rented the vehicle from DCFS Trust, is insufficient to establish DCFS Trust's business or trade or its employee roster.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2011

CLERK