Pena v Cab E. LLC

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Pena v Cab E. LLC 2019 NY Slip Op 34875(U) May 7, 2019 Supreme Court, Bronx County Docket Number: Index No. 32813/2018E Judge: John R. Higgitt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 32813/2018E FILED: BRONX COUNTY CLERK 05/08/2019 04:08 PM NYSCEF DOC. NO. 29 NYSCEF: Mtn . Seq. 05/08/2019 !1 QJ_ NEW YORK SUPREME COURT - COUNTY OF BRO RECEIVED X SUPREME COU RT OF THE STA TE OF NEW YO RK COU TY OF BRONX : PART 14 -------------------------------------------------------------------X Index N~ . 32813/2018E PENA, RAMON A. - against - Hon. JOHN R. H IGGITT. Justice . CAB EAST LLC, et al --------------------------------------------------------------------X The followi ng papers numbered 1 to 15 and 20 to 26 in the YS CEF System were read on this motion for DISMISSAL, noticed on Februarv 19, 2019 and dul y submitted as o. 58 on the Moti on Calendar of February 19 . 2019 NYSCEF Doc. Nos. Notice or Motion - Exhibits and Affidavits Annex ed 7-15 Noti ce of Cross-Motion - Ex hi bits and Affidavits Annexed Answering Affidavit and Exh ibits 20-25 Replying Affi davit and Exhibits 26 Filed Papers Memoranda of Law Stipulations Upon the foregoing papers, the moti on o f defendant Cab East LLC to di smi ss the complaint a asse11ed against it and the cross claim asserted against it is granted, in accordance wi th the annexed decision and order. Dated: 05/07/2019 Check one: • Case Di sposed in Entirety ~ [* 1] Case Still Acti ve Motion is: Granted • GIP • Denied • Other ~ 1 of 4 Check if a ppr priate: • Schedule Appearance • Fiduciary Appoi ntment • Referee Appointment • Settle Order • Submit Order INDEX NO. 32813/2018E FILED: BRONX COUNTY CLERK 05/08/2019 04:08 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/08/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX : I. A.S . PART 14 ----------------------------------------------------------------------X RAMO A. PENA Plaintiff, - against - DECISJO Index AND ORDER o. 32813/20 l 8E CAB EAST LLC TARA R. KAZI MOHAMMED KAZI and SHAKIL A. KAZI , Defendants. ----------------------------------------------------------------------X John R. Higgitt, J. This negl igence action arises out of a motor vehicl e accident that occurred on April 4, 2018. Defendant Cab East LLC ("Cab') seeks dismissal of the complaint as against it and the cross claims against it under CPLR 32 11 (a)(l) and (7). For the reasons that follow the mo ving defendant's motion for is granted. Under the Graves Amendment (49 USC § 30 l 06) the owner of a leased or rented motor vehicle is not vicariously liable for personal injuries sustained as a result of an accident involvi ng a leased or rented vehicle ( ee Jones v Bill, 10 NY3d 550, 554 [2008]). To establ ish entitlement to judgment under the Graves Am endment, the owner of the leased or rented vehicle must sho w: (I) that the owner is in the business ofleasing or renting motor vehicles; (2) that the owner owned the subject vehicle· (3) that the owner leased or rented the subj ect vehicle to a third party· and (4) if plaintiff alleges that the owner was negligent, that the resulting accident was not caused by negligent maintenance of the vehicle by the owner (see Villa-Capellan v Mendoza 135AD3 d555 556[lstDept2016]; assidyvDC~ Tru t, 89 AD3d591 59 1 [lstDept2011l ee also Reifsnyder v Penske Truck leasing Corp ., 140 AD3d 572 [1st Dept 20 16]). In support of its motion defendant Cab submitted a copy of the pleadings, the rental [* 2] 2 of 4 FILED: BRONX COUNTY CLERK 05/08/2019 04:08 PM NYSCEF DOC. NO. 29 INDEX NO. 32813/2018E RECEIVED NYSCEF: 05/08/2019 agreement, and the affidavit of Dean Bridges, director of Business Center Operations at Ford Motor Credit Company. In his affidavit Bridges avers that defendant Cab is a single-pw-pose entity in the business of leasing vehicles: Cab holds lease agreements. Bridges also averred that after the vehicles are leased defendant Cab has no obligation to maintain or repair the vehicles because Cab does not possess or have phys.ical control over the vehicles. The lease agreement shows that at the time of the subject accident the vehicle wa leased to defendant Tara Kazi. On a motion to dismiss the complaint for fai lure to state a cause of action under CPLR 3211 (a)(7) the court must accord the pleadings a liberal construction accept the facts alleged a true, afford the plaintiff every reasonable favorable inference and determine whether the facts alleged fit within a cognizable legal theory (see Connaughton v Chipotle Mex;can Grill, Inc., 29 Y3d 13 7 [2017]). Where a defendant submits evidence in support of the motion, the important criterion is whether the plaintiff has a valid cause of action, not whether plaintiff has stated one (see Leon v Martinez, 84 NY2d 83 [1994] ; Bas;s Yield Alpha Fund (Maste1) v Goldman Sachs Group, Inc., l 15 AD3d 128 [1st Dept 2014 ]). Here, defendant Cab s evidence - - the affidavit and lease agreement - - conclusively established that plaintiff has no cause of action again defendant Cab because the Graves Amendment applies (see generally Basis Yield Alpha Fund (Ma fer) v Goldman Sach Group. Inc. , supra). In opposition, plaintiff argues that the motion should be denied because defendant Cab failed to submit evidence in admissible form r lying solely on a "self-serving' affidavit. However an affidavit submitted by interested party is competent evidence (see Miller v City of New York 253 AD2d 394, 395 [l st Dept 1998]). Additionally plaintiff argues that because defendant Tara Kazi alleged in her answer that she did not know who owned the ehicle, an issue 2 [* 3] 3 of 4 INDEX NO. 32813/2018E FILED: BRONX COUNTY CLERK 05/08/2019 04:08 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 05/08/2019 of fact exits as to whether she entered into a lease with defendant Cab. However, the lease provided by defendant Cab demonstrated that there is a binding contract between it and defendant Kazi relating to the subject motor vehicle. Plaintiff also argues that the motion is premature because depositions have not been taken. Plaintiff, however, did not point to any facts essential to his opposition that are in defendant Cab ' s exclusive control (see CPLR 3211 [d]). The aspect of defendant Cab's motion for dismissal under CPLR 321 l(a)(l) is denied as moot. The court notes however, that the affidavit provided by defendant is not "documentary evidence" (see Celentano v Boo Realty, LLC, 160 AD3d 576 (l st Dept 2018]) Accordingly, it is ORDERED, that defendant Cab East LLC s motion to dismiss is granted and the complaint as against it and the cross claims against it are dismissed; and its further ORDERED, that the Clerk of the Court shall enter judgment in favor of defendant Cab East LLC dismissing the complaint as against it and the cross claims against it. The parties are reminded of the July 26 2019 compliance conference before the undersigned . This constitutes the decision and order of the court. Dated: May 7, 2019 3 [* 4] 4 of 4

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