Muller v Gilliard

[*1] Muller v Gilliard 2010 NY Slip Op 50981(U) [27 Misc 3d 1231(A)] Decided on May 26, 2010 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2010
Supreme Court, Suffolk County

Marna J. Muller and Jason G. Muller, Plaintiffs,

against

Michael A. Gilliard, Penske Truck Leasing and International Paper Company, Defendants.



16249-09



JOHN L. JULIANO, PC

Atty. For Plaintiffs

39 Doyle Ct.

East Northport, NY 11731

GOLDBERG, SEGALLA, LLP

Attys. For Defendants

11 Martine Ave.

White Plains, NY 10606

Thomas F. Whelan, J.

ORDERED that this motion (#

002) by defendant, Penske Truck Leasing, for summary judgment dismissing the plaintiffs' complaint, is considered under CPLR 3211(a)(7) and CPLR 3212 and is granted.

The plaintiffs commenced this action to recover damages for the personal injuries sustained by plaintiff, Marna J. Muller in a motor vehicle accident that occurred on February 23, 2009. According to the complaint, the injured plaintiff's injuries were sustained when the vehicle she was [*2]operating on Brooksite Drive in Smithtown, NY was struck in the rear by a truck operated by defendant, Michael A. Gilliard (hereinafter "Gilliard"). The truck was leased to defendant, International Paper Company (hereinafter "International"), by moving defendant Penske Truck Leasing (hereinafter "Penske"), which was the registered owner of the truck on the date of the accident.

By the instant motion, Penske seeks summary judgment dismissing the plaintiffs' complaint on the grounds that the plaintiffs have no cognizable claims for relief against it. In support of the motion, Penske asserts that as the lessor of the truck, it is not vicariously liable for the acts of either of its co-defendants by reason of the "Graves Amendment", a federally promulgated rule that exempts the vicarious liability provisions of VTL which would otherwise render an owner of a vehicle liable for the negligent acts of its permissible users of said vehicle. Penske further contends that the plaintiffs' second cause of action, which sounds in negligent entrustment is equally insufficient, since Penske did not entrust the truck to defendant, Michael A. Gilliard (hereinafter "Gilliard"). For the reasons set forth below, the motion is granted.

The Graves Amendment, now codified at 49 USC § 30106, renders the vicarious liability provisions of VTL § 388 inapplicable to an owner or affiliate owners of motor vehicles who are engaged in the trade or business of renting or leasing motor vehicles. "This statute is applicable to all actions commenced on or after August 10, 2005 and has been enforced as pre-empting the vicarious liability imposed upon commercial lessors by Vehicle and Traffic Law § 388." (Graham v Dunkley, 50 AD3d 55, 852 NYS2d 169 [2d Dept 2008]). The applicability of the Graves Amendment to this action and to the moving defendant is not disputed. Accordingly, those portions of Penske's motion wherein it seeks summary judgment dismissing so much of the plaintiffs' complaint that charges Penske with vicarious liability for the occurrence of the accident and the damages sued upon, are granted (see Gluck v Nebgen, 72 AD3d 1023, 898 NYS2d 881 [2d Dept 2010]).

The remaining portions of Penske's motion wherein it seeks dismissal of the plaintiffs' second cause of action wherein they seek to hold Penske liable by reason of its purported negligent entrustment of the truck are also granted. While it is clear that the Graves Amendment has no application to claims of negligence against a commercial lessor of vehicles that are not premised on the vicarious liability provisions of VTL § 388 (see Palacios v Aris, Inc., 2010 WL 933754 [ED NY 2010]), the plaintiffs' claims of negligent entrustment on the part of moving defendant Penske are not cognizable. It is well established that claims for negligent entrustment rest upon the degree of knowledge the supplier of a chattel has or should have had concerning the entrustee's propensity to use the chattel in an improper or dangerous fashion (see Hamilton v Beretta USA Corp., 96 NY2d 222, 727 NYS2d 7 [2001); Zara v Perzan, 185 AD2d 236, 586 NYS2d 139 [1992]).

Here, it is not disputed that Penske did not entrust the subject truck to Gilliard, the operator of such truck. Rather, Penske leased the truck to International who in turn, entrusted it to Gilliard. The moving papers sufficiently established that Gilliard was not an employee, servant or agent of Penske or otherwise known to it. The opposing papers submitted by the plaintiffs failed to raise any [*3]question of fact regarding knowledge, actual or constructive, on the part of moving defendant Penske that its entrustee, International, had a propensity to use leased vehicles in an improper or dangerous fashion. The fact that Gilliard may not have possessed a valid driver's license, pursuant to which, he could legally operate the subject truck does not warrant a denial of Penske's motion as it relates to the plaintiffs' negligent entrustment claims (see generally Hamilton v Beretta USA Corp., 96 NY2d 222, supra ; see also Cook v Shapiro, 58 AD3d 664, 871 NYS2d 714 [2d Dept 2009]; Weinstein v Cohen, 179 AD2d 806, 579 NYS2d 693 [2d Dept 1992]).

In view of the foregoing, the instant motion is granted and the plaintiffs' complaint is dismissed in so far as it asserts claims against defendant Penske Truck Leasing.

DATED: ______________________________________________

THOMAS F. WHELAN, J.S.C.