Portnova v Toyota Motor Credit Corp.

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Portnova v Toyota Motor Credit Corp. 2013 NY Slip Op 34054(U) March 15, 2013 Supreme Court, Queens County Docket Number: 14875/12 Judge: Valerie Brathwaite Nelson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Page i9 of 116 21616J2013 RECEIVED PAPERS UNENTERED ORDER THAT WAS SIGNED AFTER CASE WAS DISCONTINUED AS WELL AS ADDITIONAL PAPERS 2012114875 O RDER SIGNED (Page i of 4)'_ _.__ _ Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: Honorable VALERIE BRATHWAITE NELSON IA TERM, PART 7 Justice --------------------------------------x BLORIA PORTNOVA, an infant by her mother and natural guardian ALLA PORTNOVA, Index No . : 14875/12 Motion : 12 / 5/12 Plaintiff, Motion seq. No.: ,.l c::> w Cal . No. : 94 -- against -- ::i.:z: ~ 1') C> TOYOTA MOTOR CREDIT CORPORATION, et al., .. Defendants. ·--------------------------------------x The following papers numbered l to 12 read on this motion by defendant Toyota Motor Credit' Corporation ( "TMCC"} for an order pursuant to CPLR 32ll(a) (7) dismissing the plai ntiff's complaint and all cross-claims in its favor on the grounds that the pleadings fail to state a cause of action and severing the dismissed action as against TMCC from the remaining action. PAPERS NUMBERED , · .··· Notice of Motion-Affidavits-Exhibits . ... . , .. ,., l - 7 Answering Affidavits - Exhibits .. .. ..... . . ...... 8 9 Reply Affidavits - Exhibits .. ......... . . . ..... .. 10 - 12 Upon the foregoing papers, it is ordered the motion is determined as follows : This is an action by plaintiff seeking damages for personal injuries allegedly sustained in a multi vehicle accident occurring on June 27 , 2oi2. Plaintiff, a passenger in a vehicle owned and operated by Boris Aronov , alleges that she was injured when Mr . Aronov' s vehicle came i n contact with a vehicle owned by TMCC, leased by Mario Rodriguez and operated by Sara Rodriguez. Defendant, TMCC , moves for an order pursuant to CPLR Printed . 712612016 [* 2] 21616/2013 RECEIVED PAPERS UNENTERED ORDER THAT WAS SIGNED AFTER CASE WAS DISCONTINUED AS WELL AS ADDITIONAL PAPERS 2012/14875 ORDER SIGNED (Paga Page 80 of 116 2<>I 4) §32ll(A) (7) claiming that it cannot be held vicariously liable for the negligent acts of Sara Rodriguez while operating a car it owns. Under New York Law, an owner of a vehicle is vicariously liable for negligence in its use (VTL §388). However, 49 u.s.c. §30106, commonly known as the "Graves Amendment," abolished vicarious liability of long-term automobile lessors based solely on ownership and is applicable to any action commenced on or after the date of enactment, August 10, 2005. The constitutionality of this federal statute has been upheld in New York State as a valid exercise of Congressional power pursuant to the Commerce Clause inasmuch as a rational basis exists for the conclusion that the Graves Amendment's regulation of rented or leased motor vehicle safety and responsibility has a substantial effect on interstate commerce (Graham v Dunkley, SO AD3d 55, [2008}. 852 N.Y.S.2d 169 [2008)). The constitutionally of the statute has also been upheld in Merchants Insurance Group v Mitsubishi Motor Credit Association , 525 F. Supp. 2d 309 [2007); S~vmour v Penske Truck Leasing Co ., L . P., Slip Copy WL 2212609 [S.D. Ga 2007) 407CV015 and Garcia v Vanguard Car Rental USA, Inc., 510 F.Sqpp.2d 821 (2007)). on a motion to dismiss for fail.t!lre to state a cause of action under CPLR 321l(a) (7), the court must determine whether from the four corners of the pleading 11 factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Morad v Morad, 27 AD3d 626, 627 [2006); ~ EBCI, Iner v Goldman Sachs & co., 5 NY3d 11 (2005); Goshen y Mutual Life Ins. Co. of New York, 98 NY2d 3i4 [2002f; Holmes y Gary Goldberg & Co., Inc., 40 AD3d 1033 [2007); 83-17 Broadway Corp . v Debcon Financial Services, Inc., 39 AD3d 585 (2007); MgKenzie v Meridian Cspital Group, LLC, 35 AD3d 676 {2005)) . The pleading is to be afforded a liberal construction, the facts alleged in the comp l aint accepted as true, and the plaintiff accorded the benefit of every possible favorable inference (™ Leon v Mart inez, 84 NY2d 83 (1994)). Nevertheless, "bare legal conclusion and factual claims which are flatly contradicted by the record are not presumed to be true" (Parola, Qross & Marino, P . C. v Susskind, 43 AD3d 1020, 1021-1022 [2007) c iting Morone v Merone , so NY2d 48 1 (19 80]; Kupersminth Winged Foot Golf Club, Inc., 38 AD3d 847(2007]; Meyer v.Guinta, 262 AD2d 463[1999)). The pleadings , affidav it of Dion Bryce- Wells, certificate of title for the vehicle operated by .Sara Rodriguez, lease agreem ent between Mario Rodriguez and Toyota of Manhattan and Notice t o Admit/Response to Notice to Admit are submitted in support of the 2 Prinle<f. 7126/2016 [* 3] 21 616120 13 RECEIVED PAPERS UNENTERED ORDER THAT WAS SIGNED AFTER CASE WAS DISCONTIN UED AS WE LL AS ADDITIONAL PAPERS Page 8 1 of116 . 201 2114875 O R DER S IGNED (Page 3 of 4 ) within motion1 • The motion is opposed only by the plaintiff. Plaintiff argues that the TMCC failed to establish that it is entitled to the protections afforded by the Graves Amendment. More particularly, plaintiff argues that TMCC is not in the business of renting or leasing vehicles inasmuch as it merely accepted an assignment of the lease and did not actually lease the vehicle in question to Mario Rodriguez. However, the Court finds no merit in this argument (see, Gluck v Nebgen, 72 AD3d 1023(2010]). Ms . Bryce-Wells, a lease collecting agent employed by TMCC is charged with reviewing customer files and supervising accounts for vehicles leased by the moving defendant and therefore may properly testify as to the documents and business practices of TI~CC . FUrthermore , Ms. BryceWells' testimony with respect to the nature of TMCC's business and its relationship with the Mario Rodriguez is supported by the lease agreement submitted and the Response to Notice to Admit . 2 Additionally, plaintiff argues th~t TMCC is not immune from liability under the Graves Amendment when it negligently entrusts its vehicle to another. In a viable qause for negligent entrustment "the defendant must either have some special knowledge concerning a characteristic of condition peculiar to the [person t o whom a particular chattel is given] which renders (that person's) use of the chattel unreasonably dangerous . . . or some special knowledge as to a characteristic or defect peculiar to the chattel which renders it unreasonably dangerous." (Cook v Schapiro , 58 AD3d 664, 666 (2009] quoting Zara v Perzan, ias AD2d 236, Z37 (1992); see also, Weinstein v Cohen, 179 AD2d 806 [1992]) . It therefo- e follows r that plaintiff was required to plead that TMCC had reason to know that Mario Rodriguez and/or Sara Rodriguez were likely to use its vehicle in an unsafe manner or that TMCC had knowledge that the vehicle in question possessed a defect which rendered its use unreasonably dangerous. However, the complaint herein makes no s uch allegations . Finally, plaintiff argues that the Graves Amendment does not prevent the imposition of liability against a lessor who fails to maintain its vehicle . However, dismissal pursuant to CPLR 3211(a) (7) will be granted upon a showing that the lessor did not 'Robert Rodriguez ' Response to Notice to Admit establishes that t he relationship between him and the movant/owner o f . the vehicle driven by Sara Rodr i guez was that of lessor and l essee . 2 The lease agreement contains a provision by which Toyota of Manhattan assigns its rights in the leased vehicle to TMCC. 3 Printed. 7126/2016 [* 4] Page 82 cf 116 2161612013 RECEIVED PAPERS UNENTERED ORDER THAT WAS SIGNED AFTER CASE WAS OISCONTINUEOAS WELLASAOOITIONAL PAPERS 2012114875 ORDER SIGNED (Page 4 ol 4) engage in the repair and maintenance of its vehicles and tha·t such responsibility belonged solely to the lessee (Kahn v MMCA Lease. Ltd . , 100 AD3d 833 , 834 (2012) citing Guggenheimer v .Ginzburq, 43 NY2d at 2.75; Gluck v Nebgen, 72 AD3d at 1023) . The evidence submitted herein establishes that the subject vehicle was maintained solely by the lessee, Mario Rodriguez. Accordingly, the motion by defendant Toyota M otor Credit Corporation is granted pursuant to CPLR 3211(a) (7) to the extent that the complaint and all cross claims are dismissed as against Toyota Motor Credit Corporation. The motion is denied in all other respects. Dated: 3 /;.=:/;3 -r:. .:::.:: ·f!i :_.j ·u co .. >- a :::>-' o- C> c:..)U.. ('.J ·z Cf) 0:: = o · '""' ~ I-('.;::) . =-==~ · ~ cc ::z:: .. • ~ 1 = t~v n . ... oz ~~w noi Printed 7/26/2016

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