Wallis v Harrison

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Wallis v Harrison 2019 NY Slip Op 35074(U) November 1, 2019 Supreme Court, Bronx County Docket Number: Index No. 30337/2019E 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. 30337/2019E FILED: BRONX COUNTY CLERK 11/07/2019 12:19 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/07/2019 S PREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX : I.A.S. PART 14 ----------------------------------------------------------------------X PEGGY WAL LIS. Plaintiff, - against SHERMA HARRISO , MARLO LEASE PLAN U.S.A. IN C. Index o. 30337/20 I 9E CAMILO and Defendants. ----------------------------------------------------------------------X John R. Higgitt J. Upon the October 10, 20 19 notice of motion of d fenda nt Lease Plan .S.A., Inc. (L ase Plan) and the affirmation, affidavit and exhibits submi tted in upport thereof plainti ffs October 10, 2019 affirmation in opposition· defendant Lease Plan' s undat d affi1111ation in reply ; and du deliberation· defendan t Lease Plan ' s motion for an order dism issi ng the complaint as agai n ti t pursuant to CPL R 3211 (a)(l) and (7) is granted in part. 1n this action emanating from a motor vehi cle accident, plaintiff alleges that defendant Lease Plan owned , managed , maintained and controlled the offending vehicle, and that defendant Camilo operated the offending vehicle in the course of his employment with defendant Lease Plan. Defendant Lease Plan moves for an order di missing the complai nt a agai nst it pursuant to CPLR 32 11 (a)(l) and (7) on the gro und that the claims again tit are barred b the Graves A mendment. ]n suppo1i of the motion, defendant Lease Plan submits the affidavit of its seni or risk analyst who avers that Lease Plan i engaged in the business of long-term com merci al leasing of vehi cles and provi ding fleet-related serv ices. The analyst also ave rs that, pursuant to an annexed February 25 , 2004 lease agreement, at the time of the accident. the offending vehicl e wa leased [* 1] 2 of 4 FILED: BRONX COUNTY CLERK 11/07/2019 12:19 PM NYSCEF DOC. NO. 17 INDEX NO. 30337/2019E RECEIVED NYSCEF: 11/07/2019 to a non-party who, pursuant to the terms of the lease, was re pon ible for maintenance of the vehicle. Defendant Lease Plan also submits the police accident repo rt containing a ehicl e identification number for the vehicle dri ven by defendant Camilo that matches that appearing in a schedule attached to the lease agreement. The anal yst avers further that defendant Camil o was not defendant Lease Plan s agent, servant or employee. Pursuant to Vehicle and Traffic Law. 388(1), an own r of a motor vehicle i j intly and severally liable for the negligence of the vehicle·s dri ver. The Graves Amendment (49 USC§ 30106[a]) exempts from liability under Vehicle and Traffic Law 388(1) tho e vehicle owners and their affiliates ' engaged in the trade or business of renting or leasing motor vehicl es:· The foregoing was ufficient to meet defendant Lease Plan 's prima foc i burden on the claims of vi.carious liability (see Hall v Elrac. Inc., 52 A D3d 262 [1st Dept 2008]) and. to the extent such a claim is discernable from the complaint, respondeat superior (see Freibaum v Brady, 143 AD 220 [1st Dept 1911] ; cf Cassidy v DCFS Tr. , 89 AD3d 591 [I t Dept 201 l]). Furthermore, defendant Lease Plan established that, beca use the lessor was obligated to maintain the vehicle throughout the term of the lease the accident was not due to defendant Lease Plan· s independent negligence in the maintenance of the vehicle (see Reij~nyder v Penske Truck Leasing Corp. , 140 AD3d 572 573 [1st Dept 20 16]- Villa- ape/Ian v Me ndoza 135 AD3d 555 [1st Dept 2016]- see also Costello v Panavision <?f . Y, 8 AD3d 143 [ l t Dept 2004], Iv den 4 Y3d 703 [2005]). Defendant Lease Plan established its entitlement to di smi al of the complaint a against it pursuant to C PLR 32 11 (a)(7) (. ·ee ukoviq v fftikhar , 169 A D3d 766 [2d Dept 20 19] ; Aviaev v Nissan Jnfiniti LT, 150 AD3d 807 [2d Dept 20 17]), and plaintiff fai led to raise an issue of fact. Plaintiff offered token opposition to the motion. 2 [* 2] 3 of 4 INDEX NO. 30337/2019E FILED: BRONX COUNTY CLERK 11/07/2019 12:19 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/07/2019 Accordingly, it is ORDERED, that the aspect of defendant Lease Plan's motion for dismissal of the complaint as against it pursuant to CPLR 3211 (a)(7) is granted; and it is further ORDERED, that the complaint as against defendant Lease Plan is dismissed ; and it is further ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendant Lease Plan dismissing the complaint as against it; and it is further ORDERED, that the motion is otherwise denied ; and it is further ORDERED, that the Clerk of the Court shall issue a case scheduling order on December 20, 2019 . This constitutes the decision and order of the court. Dated: November I, 2019 John R. 3 [* 3] 4 of 4

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