Rosenblum v Valentino

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Rosenblum v Valentino 2020 NY Slip Op 35306(U) January 15, 2020 Supreme Court, Suffolk County Docket Number: Index No. 611398/15 Judge: Carmen Victoria St. George 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. 611398/2015 FILED: SUFFOLK COUNTY CLERK 01/16/2020 10:12 AM NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 01/16/2020 SUPREME COURT-STATE OF NEW YORK TRIAL TERM, PART 56 SUFFOLK COU TY PRESENT: Hon. Carmen Victoria St. George Justice of the Supreme Court - - -- - - -- - - - -- - - -- - - - - - X Index o. 611398/ 15 LO NY ROSENBLUM and ABBY ROSENBL UM, Plaintiffs, Motion Seq: 006 MD 008 Mot D Decision/Order -againstDA JELLE VALENTINO, GREAT NECK NISSA LLC, and JAMES CUSH Defendants. - -- -- - -- - - - -- - - -- - - - - - X The following electronically-filed and numbered papers were read upon this motion : Notice of Motion/Order to Show Cause ... . ... .... . Answering Papers ........ .... ...... . .. .. . .. ... .. ........ . Reply ........ . ... . ........ . ................. .. ... .......... . Briefs: Plainti ff's/ Petitioner 's ... ... ........ ..... .... . Defendant 's/Respondent 's . .. .... . ......... . 126-141 ; 213-226 167-172; 227-232 197-203 ; 235 Defendant Great eek Nissan LLC (Nissan) moves this Court for an Order granting summary judgment dismi ssa l of the complaint and all cross-claims asserted aga inst it in this motor vehicle injury acti on. pursuant to 49 U C S 30 106 (a), known as the Graves Amendment (Motion Sequence 006). Plaintiffs oppose the requested relief Plaintiffs cross-move for an Order compelling Nissan to produce Joseph Valentino, one of its owners, for deposition, and to compel Nissan to " sufficientl y respond" to discovery demands (Motion Sequence 008). Nissan opposes the relief requested in the cross-motion. It is undisputed that the motor vehicle accident giving rise to thi s action occurred on October 1, 2014, at approximately 3:30-3:40 p.m. , on the Nmihern State Parkway, in assau County New York . The chain-reaction rear-end accident involved four vehicles. Vehicle I was operated by non-part y Desiree Aaron; Vehicl e 2 was operated by pl ai nti ff Lonny Rosenblum ; Vehicle 3 was operated by defendant Danie ll e Valentino. and Vehicl e 4 wa operated by [* 1] 1 of 6 FILED: SUFFOLK COUNTY CLERK 01/16/2020 10:12 AM NYSCEF DOC. NO. 240 INDEX NO. 611398/2015 RECEIVED NYSCEF: 01/16/2020 defendant James Cush. Plaintiff Lonny Rosenblum claims that he suffered a number of injuries as a result of the subject accident, and his wife, Abby Rosenblum , sues derivatively. issan's Summary Judgment Motion (Motion Sequence 006) The Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (A ndre v. Pomeroy, 35 Y2d 361 [1974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007]). The Court's analysis of the evidence must be viewed in the li ght most favorable to the non-moving party, herein the plaintiff and codefendants (Maka} v. Metropolitan Transportation A utltority, 18 AD3d 625 [2d Dept 2005]) . The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence any material issue of fact (Winegrad v. New York University Medical Center, 64 MY2d 851, 853 [ 1985]). Failure to make such prima facie showing requires a denial of the mo tion, regardless of the sufficiency of the opposing papers (Id.) " Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admi ssible form suffic ient to establi sh the ex istence of material issues of fact which require a trial of the action" (A lvarez v. Prospect Hospital, 68 Y2d 320, 324 [1986]). The Graves Amendment, enacted in 2005 , is federal legislation preempting vicarious liability imposed by states on commercial lessors of vehicles (Vehicle and Traffic Law § 388). The Graves Amendment has been found to be con titutional , and it acts as a bar to an action against a rental or lea ing company for injuries and/or damages based solel y on a theory of vicarious liability (s ee Graham v Dunkley, 50 AD3d 55 [2d Dept 2008]). The legis lation reads, in pertinent part: (a) In general. An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shal l not be li able under the law of any State or political subdivis ion thereof, by reason of being the owne r of the vehicle (or an affiliate of the owner) , for harm to per ons or property that results or arises out of the use , operation, or possession of the vehicle during the period oft he rental or lease, if--(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner) (49 USC §30106) (emphasis added). A movant seeking summary judgment dismissal of the claims against it based upon the Graves Amendment must, infer alia eliminate all triable issues of fact a to whether there was any lease agreement in effect o n the date of the acc ident (Cioffi v. S.M. Foods, Inc. , 2019 Y Slip Op 09251 [2d Dept 2019]; Cioffi v. S.M. Foods, Inc. , 129 AD3d 888 [2d Dept 2015] ; Currie v. Mansoor, 159 AD3d 797 [2d Dept 2018]" Lynch v. Baker, 138 AD3d 695 [2d Dept 20 16]). 2 [* 2] 2 of 6 FILED: SUFFOLK COUNTY CLERK 01/16/2020 10:12 AM NYSCEF DOC. NO. 240 INDEX NO. 611398/2015 RECEIVED NYSCEF: 01/16/2020 Here, the complaint all eges negli gence against all defendants in the ownership, operation, management, maintenance, supervision , use, control , inspection and repa ir of the defendants ' vehicles. The Bills of Particulars also allege that the defendants were, among other allegations of negli gence, negligent in fail ing to maintain thei r motor ve hicles, '·particularl y the steerin g, braking, signaling devices and ti res, in proper working condition ... " In support of its moti on issan submits, inter alia , the plead ings, the certi fied police acciden t report, the deposition testimony of defen dant Dani el le Val entino and that of Jo eph Rello, N issan's former rental manager, the first page of the rental agreement upon which it relies, a rece ipt for payment concerning the subject rental vehicle, a repair report for the subj ect vehicle fol lo wing the accident, an inspection report for the vehicle, and ew York State Department of Motor Vehicles literature concerning vehicle in spections. issan argue that it is entitled to summary j ud gment pursuant to the Graves Amendment because it is in the business of renting motor vehicles; there is no negligence or criminal wrongdoing alleged against it; the vehicle operated by defendant Valentino had passed its state inspection less than one m onth pri or to the accident that occuned on October 1 20 14, so issan was not negligent in maintaining the rental vehicl ·s brakes: the ve hicle operat d by Val ntino " was rented at the time the subj ect accident occurred and .. . Ms. Valentino was an authori zed driver of the rental vehicle. " issan subm its the first page of the rental agreement, but both pages of the agreement were apparently introduced into evidence by pl aintiff: as plaintiffs Ex hibit 1, during the deposi ti on of issan s rental manager, Joseph Rello. In fact, Mr. Rel lo was questioned about the terms of th rental agreement printed on the second page thereof. Th Court also notes that both pages of the rental agreement had been exchanged with plaintiff prior to deposi tio ns, evidenced by plaintiff's counsel's inquiry as to its terms durin g Mr. Relic ' s deposition. There is no dispute that the ren tal agreement about which Mr. Rello was questi oned is the agreement that issan rel ies upon in support of the instant moti o n. M r. Rello identified it as N issan 's rental agreement pertaining to the car in vol ved in the subject accident that was being driven by Danielle Va lentino. Mr. Rello further testifie d tha t Joseph Valentino is a co-owner of Nissan and it is undisputed that Danielle is Mr. Valentino 's daughter . It is fu rther undi puted that Dani elle Valentino was working at is an at th time of the subject acc ident. Mr. Rel lo ide nti fied Mr. Valentino s signat ure appearing at the bottom of the first page of the rental agreement. Mr. Valentino is listed as the " customer" according to the agreement, and Daniell e Valentino is listed as an "additional dri ver." T he Graves Amendment protects rental/l easing companies during the period of the rental. In this cas , the first page of the renta l agreemen t raises a material questio n of fact as to whether there was a rental agreem ent in effect o n the date of the accident: October 1, 20 14. The ection of the agreement entitled "Rental Vehicle Inform ation" contains box es for "Date and Time OUT" and 'Date and Time DUE I ." The date and time that the veh icle was "o ut" is typewritten as " 09/24/20 14 09 :32 AM ." The date and time that the veh icle was "due in ' is 3 [* 3] 3 of 6 FILED: SUFFOLK COUNTY CLERK 01/16/2020 10:12 AM NYSCEF DOC. NO. 240 INDEX NO. 611398/2015 RECEIVED NYSCEF: 01/16/2020 typewritten as being " 09/25/2014 0932 AM." Based on this information, the vehicle was a oneday/24-hour rental , due back on eptember 25, 2014, at 9:32 a.m .; therefore, the accident occurred outside of the time period li sted on the rental agreement. While thi s would seem to settle the question, the section entitled " Rates Do Not Include Fuel ' raises the prospect that the rental was for nine (9) days, which would include the accident date. Specifically, this section of the rental agreement contains pre-printed rows to fill in the hours, day , and weeks of the rental , plus a row to record the mileage. The hourly rate as reflected on the agreement was "$6.67 per hour, ' and the number of days of the rental is listed as being "9," at $20 .00 per day, for a total of $ 180.00. Not only is the nine-day rental at odds with the date and time li sted for the car' s release and return (24 hours) , but the $ 180.00 fee charged for the rental is incorrect if the hourly charge as li sted is 6.67 per hour. At that hourl y rate, the rental would have cost $ 1,440.72. The terms of the renta l agreement. paragraph 3, require the r turn of the rented vehicle to Nissan ' s office before the du dat if the lessee wishes to extend the rental period, which must be accomplished by "written amendment.' issan has failed to offer any proof that the rental period was extended; thus, the critical fact as to the duration of the rental , 24 hours versus 9 days, has not been established . Although Mr. Rello was ab le to identify the rental agreement at hi s deposition, as well as the signature of Mr. Valentino thereo n, Mr. Rello was unable to state who filled out the inform ation typed on the renta l agreement pertaining to the car th at Dani e lle Valentino was drivin g at the time of the subject accident. The foregoing evidence, standing alone, raises a critical issue of fact that must be reso lved by the trier of fact w ho will have the opportunity to consider the evidence and assess the credibility of the witnesses presented. "Resolving questions of credibility, assessing the accuracy of witnesses, and reco nci Ii ng conflicting statements are tasks entrusted to the trier of fac t · (Bra vo v. Vargas , l 13 AD 3d 5 79, 58 l [2d Dept 2014]; see also Kahan v Spira , 88 AD3d 964 , 965 -966 [2d Dept 2011]; Gille v Long Beach City Sc/tool Dist. , 84 AD3d 1022, 1023 [2d Dept 201 1]; Ruiz v Griffin , 71 AD3d 11 12, 1115 [2d Dept 20 l O]). The deposition testimony of Danielle Valentino compounds the critical issues of fact and credibility already raised by the first page of the rental agreement. She testified that the car she was dri ving at the time of the acci dent was a rental owned by issan, and that she had just rented the car on that day, October 1. 20 14. Th is testimony is at odds w ith the dates listed on the rental agree ment. The Court notes that Daniel le Valentino was neve r shown a co py of the rental agreement at her deposition . Also, it is undisputed that Danielle Valentino was on ly eight en (18) yea rs old on the date of the acc ident. According to the terms of the rental agreement, "Each Authorized Driver must be at least age 21 (except Customer, at least age 18) and possess a val id driver's license. " Danielle Valentino was not the "customer;" her father, Joseph Valentino, is li sted as the "customer. " Danielle is li sted as an "authorized driver," which she does not appear to be according to the terms of the rental agreement; therefore, an add itional question of fact is raised 4 [* 4] 4 of 6 FILED: SUFFOLK COUNTY CLERK 01/16/2020 10:12 AM NYSCEF DOC. NO. 240 INDEX NO. 611398/2015 RECEIVED NYSCEF: 01/16/2020 as to whether she was operating the vehicle involved in the accident in violation of the rental agreement. The Court further notes that the first page of the rental agreement submitted by Nissan states that the vehicle that Danielle Valentino drove on the day of the accident had twelve (12) miles on it when it left issan on September 24, 2014 (Mileage OUT section). The ew York State safety inspection documentation ubmitted by issan (Ex hibit L) reveals that the subject vehicle had twenty (20) miles on its odometer on September 8, 20 14. prior to the renta l. The post-accident repair invoice for the subject vehicle dated October 1, 2014 , also submitted by Nissan (Exhibit L), records the mileage on the vehicle as being 838 miles. Additional questions of fact and credibility are raised by these discrepancies in the documents submitted by the movant, issan . Based upon the foregoing it is this Court' s determination that Tissan has failed to establish its prima.facie entitlement to ummary judgment a a matter of law. Accordin gly, it is unnecessary to determine whether the pl a intiffs ' papers submitted in opposition are sufficient to raise a triable issue of fact (see Levin v Khan , 73 AD3d 991 [2d Dept 2010]; Kjono v Fenning, 69 AD3d 581 [2d Dept 201 O]). A motion for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or w here there are iss ues of credibility'· (Scott v. Long Island Power Authority, 294 AD2d 348, 348 [2d Dept 2002]). With this principle in mind , issan ' s summary judgment motion is denied (Motion Sequence 006). Plaintiffs ' Cross-Motion to Compel (Motion Sequence 008) Plaintiffs seek to compel the deposition of Joseph Valentino and to compel Nissan to " sufficiently re pond to discovery demand s." A trial Certification Order has not yet been issued in this case; accordingly no note of issue/certificate of read iness has been filed . This matter next appears on this Court 's compliance conference calendar on March 2 2020. Since issan 's summary judgm nt motion has been denied as outlined above, it is reasonable to anticipate that issan will attempt to present evidence at trial relative to the Graves Amendment defense, in which case Ni ssan may wish to call Joseph Valentino, Nissan ' s coowner, as a witness on its behalf to explain the contradictory information contained in the rental agreement that he signed as the "customer." Whether the Graves Amendment applies in this case depends upon the validity of the rental agree ment that issan claims was in effect at the time of the accident . A noted, issan has failed to establish, prima.fctcie , that the Graves Amendment ap plie herein. Mr. Rella, who already testified o n behalf of issan, had no idea who filled in the information appearing on the rental agreement form; thus, Mr. Re lic was insufficiently knowledgeable about the information contained in the agreement, especially as it relates to the critical duration of the lease, and it is reasonabl e to conclude that there is a substantial likelihood that Mr. Valentino possesses inform ation that is material and necessary to the defense of this action; therefore, he hould be deposed (Gomez v. State of New York , 106 AD3d 870 [2d Dept 20 13]; Aronson v. Im , 81 AD3d 577 [2d Dept 201 1]; Zollner v. City of New York , 24 AD2d 626 [2d Dept 1994]). T hat branch of pl ainti ffs ' motion to compel issan to 5 [* 5] 5 of 6 INDEX NO. 611398/2015 FILED: SUFFOLK COUNTY CLERK 01/16/2020 10:12 AM NYSCEF DOC. NO. 240 RECEIVED NYSCEF: 01/16/2020 produce Joseph Valentino for depo sition is gra nted. Jos ph Val entino 's deposition shall be completed on or before Febru ary 28, 2020. Nissan's claim that plaintiffs fai lure to request Jose ph Va lentino 's depos itio n prior to N issan making its summary judgment motio n evidences plaintiffs' attempt to avo id summary judgment by claiming a need for more di scovery is rendered unavai ling considering the Court's determination that Nissan failed to sustai n its primafacie burden. As far as the paper discovery demanded by pl ai nti ffs from Nissan, pl aintiffs' demand for N issan 's operating agreement identifying the managing members i peci fica ll y de nied. As for the other written discovery demanded by plaintiffs , it appear· that Nissan has substantiall y complied wi th the written demands thus far , but now that Jos ph Valentino 's deposition has been ordered to be held , plainti ffs may inqu ire of Joseph Valentino concerning the written responses already provided by issan. Fo ll owing the conclusion of Joseph Valentino 's deposition, any party, including plainti ffs may make any appropriate motion s concerning discovery· therefore, that branch of plaintiffs motion seeking to com pe l Nissan to " suffic ientl y respond" to disco very demands is denied without prejudice to renewal. The foregoing constitutes the Decision and Order of this Court cone ming Motion Sequences 006 and 008 . Dated: January 15 , 2020 Riverhead , Y , J.S. C. FI AL DISPO SITlO [ J O -F INAL DISPOSIT ION [ X] 6 [* 6] 6 of 6

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