The following papers numbered 1 to 7 read on the below motion noticed on January 31, 2018 and duly submitted on the Part IA15 Motion calendar of March 5, 2018:Papers Submitted NumberedDTGI’s Notice of Motion, Exhibits 1,2Jacques Def.’s Aff. in Opp., Exhibits 3,4Sangary/Sidibe’s Aff. in Opp. 5DTG’s Reply Aff., Exhibits 6,7DECISION/ORDER Upon the foregoing papers, defendant DTG Operations, Inc., i/s/h/a Dollar Rent A Car (“DTG”) moves for an order (1) pursuant to CPLR 3211[a][7], upon the grounds that DTG is immune from causes of action premised on vicarious liability based on the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, 49 U.S.C. §30106 (the “Graves Amendment”); (2) in the alternative, pursuant to CPLR 3212, dismissing the complaint and all cross-claims upon the grounds that DTG is not liable for the subject motor vehicle accident under any cause of action alleged in the Complaint as a matter of law; and (3) for such other, further, and different relief as this Court deems just, proper, and equitable. Codefendants Joseph Jacques, Robert Jacques, Sanoussy Sangary, and Amara Sidibe oppose the motion.I. Standard of ReviewCPLR 3211(a)(7)On a motion to dismiss pursuant to this section of the CPLR 3211(a)(7), a court’s role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. Daimler Chrysler Corp., 292 A.D.2d 118 [1st Dept. 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (See Stendig, Inc. v. Thorn Rock Realty Co., 163 A.D.2d 46 [1st Dept. 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 A.D.2d 205 [1st Dept. 1997][on a motion for dismissal for failure to state a cause of action, the court must accept factual allegations as true]). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see, CPLR 3026). The court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory” (Leon v. Martinez, 84 N.Y.2d 83, 87-88 [1994]). The motion should be denied if, from the pleading’s four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law (McGill v. Parker, 179 A.D.2d 98 [1st Dept. 1992]).CPLR 3212To be entitled to the “drastic” remedy of summary judgment, the moving party “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case.” (Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 A.D.3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 N.Y.3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire’s Hospital, 82 N.Y.2d 738 [1993]).II. Applicable Law and AnalysisFirst, DTG’s motion is not procedurally defective for failure to annex a complete copy of the pleadings (CPLR 3212[b]), because this is an “e-file” matter and thus all pleadings were electronically filed and available for review (see Studio A. Showroom, LLC. v. Yoon, 99 A.D.3d 632 [1st Dept. 2012]). In any event, DTG supplied the missing pleadings in its reply papers and thus the record is “sufficiently complete” (see Washington Realty Owners, LLC. v. 260 Washington Street, LLC., 105 A.D.3d 675 [1st Dept. 2013]). Next, the Court may consider the affidavit from DTG’s authorized agent Dennis McGinley (“McGinley”) even though it was executed out-of-state and fails to include a certificate of conformity (CPLR 2309[c]). Where, as here, the oath is duly given, the failure to comply with CPLR 2309(c) is a “mere irregularity” that may be corrected nunc pro tunc if necessary (see Matapos Technology Ltd. v. Compania Andina de Comercio Ltda., 68 A.D.3d 672, 673 [1st Dept. 2009]). The motion is therefore considered on its merits.“Under the Graves Amendment, the owner of a leased or rented motor vehicle cannot be held vicariously liable ‘for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the 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)’ (see Villa-Capellan v. Mendoza, 135 A.D.3d 555 [1st Dept. 2016], citing 49 U.S.C. §30106]; Jones v. Bill, 10 N.Y.3d 550 [2008], cert dismd 555 U.S. 1028, 129 S.Ct. 593, 172 L.Ed.2d 451 [2008]). A claim based upon negligent maintenance is not barred by the Graves Amendment because it does not absolve leasing companies of their own negligence (see Collazo v. MTA — New York City Tr., 74 A.D.3d 64 [1st Dept. 2010]).In this case, the McGinley affidavit and rental agreement establishes that at relevant times, DTG was engaged in the business of renting vehicles to the public, and it rented the subject vehicle to defendant Frank Vogel Florian at the time of this accident. DTG further established that Florian was not one of its employees. The foregoing would entitle DTG to the protection of the Graves Amendment (see Antoine v. Kalandrishvili, 150 A.D.3d 941 [2nd Dept. 2017]; USC §30106[a][1]), however the Graves Amendment does not apply where a plaintiff seeks to hold the defendant-owner liable for its own negligence (see Collazo v. MTA — New York City Tr., 74 A.D.3d 64). Plaintiff’s complaint alleges, inter alia, that the defendants were “negligent, careless and reckless in the ownership, operation, management, maintenance, supervision, use and control of the aforesaid vehicle…” (Pl. Complaint at Par. 56).On the issue of negligent maintenance, McGinley’s affidavit states: “[t]he Subject Vehicle received regular and periodic maintenance and was fully operational upon rental.” McGinley does not state where he obtained this information from or what records, if any, he reviewed to support this contention. McGinley does not state whether this vehicle had any prior mechanical problems. DTG’s motion papers do not include any records at all concerning the vehicle’s alleged “regular and periodic maintenance.” McGinley asserts that “[t]here was no criminal wrongdoing or independent negligence on the part of DTG, its nominal titleholder, RCFC or its corporate owner, Hertz.” However, DTG provides no admissible evidence as to how this accident occurred so as to establish that it was not caused by any alleged negligent maintenance on the part of DTG. On this motion record, it must be concluded that DTG failed to eliminate all triable issues of fact with respect to Plaintiff’s allegations that DTG negligently maintained the subject vehicle (cf. Villa-Capellan v. Mendoza, 135 A.D.3d 555).In Olmann v. Neil, the defendant owner-lessor of a vehicle moved for summary judgment on the issue of negligent maintenance (132 A.D.3d 744 [2nd Dept. 2015]). The movant submitted affidavits and records indicating that the subject vehicle underwent regular service and repairs, and alleging that there were no other maintenance records concerning the vehicle, no prior complaints were made, and computer records pertaining to the vehicle and found no complaints about the condition of the vehicle (132 A.D.3d 744 [Brf. for Defs.-Resp., at Page 21] [2nd Dept. 2015]). Nevertheless, the Appellate Division reversed the trial court’s grant of summary judgment to the vehicle owner-lessor, finding that although the movants established that the regular maintenance was performed on the vehicle, the owner-lessor failed to submit “any admissible evidence to demonstrate that the accident was not caused by the condition of the vehicle as a consequence of [owner-lessor]‘s allegedly negligent failure to maintain it” (132 A.D.3d at 746). In this case, DTG’s proof is similarly lacking because they submit no admissible evidence that any alleged negligence maintenance did not cause this accident. In addition, DTG’s submissions on the issue of vehicle maintenance fall well below those considered in Olmann, as DTG provides no maintenance records and McGinley does not comment on whether there were any prior issues with the vehicle (compare Reifsnyder v. Penske Truck Leasing Corp., 140 A.D.3d 572, 573 [1st Dept. 2016][defendant established that the accident was not caused by alleged negligent maintenance by submitting evidence that it regularly maintained the truck, including the brakes, that it had inspected the brakes two months before the accident occurred and found no defect, and that there was no report or other evidence of any brake failure before the accident]; see Nelson v. Citiwide Auto Leasing, Inc., 154 A.D.3d 863, 865 [2nd Dept. 2017]).In light of the foregoing, DTG’s motion to dismiss pursuant to CPLR 3211(a)(7) or alternatively CPLR 3212 is denied without consideration of the sufficiency of the opposing papers (see Winegrad v. New York University Medical Center, 64 N.Y.2d 851).The above constitutes the Decision and Order of this Court.Dated: June 26, 2018
