The following electronically filed documents read on this motion by defendant JESSICA SCORPIO for an Order pursuant to CPLR 3025(b), granting defendant JESSICA SCORPIO leave to serve an amended answer to the complaint, asserting the additional affirmative defense of the Graves Amendment and cross-claims against defendant JOHANNES SERNA; following leave to amend, pursuant to CPLR 3212, dismissing plaintiffs’ complaint on the grounds that the action against JESSICA SCORPIO is barred pursuant to the Graves Amendment to the Federal Transportation Equity Act, 49 USCA 30106:Papers NumberedNotice of Motion-Affirmation-Exhibits EF 13-23Affirmation in Opposition EF 24Reply Affirmation EF 25 This is an action to recover damages for injuries allegedly sustained in a motor vehicle accident that occurred on November 5, 2017 at the intersection of Central Park Avenue and Crisfield Street in Yonkers, New York. Plaintiffs commenced this action by filing a summons and complaint on March 30, 2018. Defendants served an answer on May 29, 2018. Thereafter, it was determined that the representation of defendants should be separated. A notice of substitution was filed on March 8, 2019, substituting counsel for defendant Scorpio. Substituted counsel now seeks to amend Scorpio’s answer.In support of the motion, Scorpio submits a copy of a booking confirmation to demonstrate that at the time of the accident, the vehicle owned by defendant Scorpio was rented to Natalia Schukina, a passenger in the vehicle operated by Serna, through a ride sharing application called Getaround. Scorpio also submits a copy of the police report and a copy of the profile page from Getaround to demonstrate that the vehicle involved in the accident was in fact the same vehicle rented through Getaround.Based on such submissions, counsel for Scorpio contends that leave should be given to Scorpio to amend the answer to include the affirmative defense of the Graves Amendment.In opposition to this branch of the motion, plaintiffs contend that they would be prejudiced at this stage in the litigation if this Court granted the motion to amend. Counsel further contends that Scorpio fails to offer any reason as to why she did not originally have separate defense counsel, and the amendment is palpably insufficient and patently devoid of merit.CPLR §3025(b) allows a party to amend its pleadings by setting forth additional transactions or occurrences at any time by leave of court or by stipulation of all parties. In the absence of significant prejudice or surprise to the opposing party, leave to amend a pleading should be freely given unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025 [b]; Edenwald Contr. Co. v. City of New York, 60 NY2d 957 [1983]; Russo v. Lapeer Contr. Co., Inc, 84 AD3d 1344 [2d Dept. 2011]; Martin v. Village of Freeport, 71 AD3d 745 [2d Dept. 2010]; Malanga v. Chamberlain, 71 AD3d 644 [2d Dept. 2010]). “No evidentiary showing of merit is required under CPLR 3025(b). The court need only determine whether the proposed amendment is ‘palpably insufficient’ to state a cause of action or defense, or is patently devoid of merit” (Lucido v. Mancuso, 49 AD3d 220, 229 [2d Dept. 2008]).Here, this Court finds that the proposed amendment is neither palpably insufficient nor devoid of merit. Additionally, there is no evidence that the amendment would prejudice plaintiffs as no depositions have been conducted and discovery is still incomplete.Regarding that branch of the motion seeking summary judgment on the grounds of the Graves Amendment, counsel for Scorpio contends that as Scorpio was the owner and lessor of the vehicle leased through Getaround and operated by Serna, the complaint must be dismissed as against her. Counsel further asserts that Scorpio is a founding member of Getaround, and the subject vehicle was maintained by Scorpio for the sole purpose of renting it through Getaround. As such, plaintiffs may not maintain an action against Scorpio.In opposition, plaintiffs contend that Scorpio failed to meet her burden as Scorpio failed to demonstrate that she did not negligently maintain the subject vehicle. Additionally, counsel contends that issues of fact exist as to whether Scorpio was in the business of renting or leasing motor vehicles and whether Scorpio negligently maintained her vehicle.Under the Federal Transportation Equity Act of 2005, 49 U.S.C. §30106, commonly known as the “Graves Amendment,” a leasing/rental company vehicle owner cannot be held to be vicariously liable for the alleged negligent acts of the renter, its employees or agents, except when there is negligence or criminal wrongdoing on the part of the owner (see Gluck v. Nebgen, 72 AD3d 1023 [2d Dept. 2010]; Graham v. Dunkley, 50 AD3d 55 [2d Dept. 2008]; Hernandez v. Sanchez, 40 AD3d 446 [1st Dept. 2007]). Accordingly, to establish its prima facie entitlement to judgment as a matter of law, a defendant must prove not only that it is in the business of leasing vehicles, but also that it did not negligently maintain the subject vehicle (see Casine v. Wesner, 165 AD3d 749 [2d Dept. 2018]; Pacelli v. Intruck Leasing Corp., 128 AD3d 921 [2d Dept. 2015]; Ballatore v. Hub Truck Rental Corp., 83 AD3d 978 [2d Dept. 2011]).Here, no evidence has been submitted to demonstrate that Scorpio is engaged in the trade or business of renting or leasing motor vehicles or that the subject vehicle was properly maintained before and at the time of the subject accident. Scorpio herself fails to submit an affidavit. Moreover, the printout of the Getaround profile annexed to the motion papers is not authenticated. Therefore, Scorpio failed to establish her prima facie entitlement to judgment as a matter of law.Accordingly, for the reasons set forth above, it is herebyORDERED, that the branch of JESSICA SCORPIO’S motion for leave to serve an amended answer is granted, and defendant JESSICA SCORPIO shall serve a copy of the amended verified answer in the proposed form uploaded as NYSCEF Doc. No. 19 along with of a copy of this order with notice of entry in conformance with the rules of service; and it is furtherORDERED, that the branch of JESSICA SCORPIO’s motion for summary judgment is denied.Dated: April 29, 2019Long Island City, NY
