RECITATION, AS REQUIRED BY CPLR 2219 (A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION: Notice of Motion 1 Affirmation in Support 2 Affirmation in Opposition 3 Reply Affirmation 4 DECISION AND ORDER In an action to recover for property damages allegedly sustained as a result of an August 20, 2015 motor vehicle incident, defendants move to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). In a motion to dismiss pursuant to CPLR 3211(a)(7), movant must either demonstrate that 1) the complaint, within its four corners, fails to state a cause of action (See, Qualified Personal Residence Trust of Doris Rosen Margett, 137 AD3d 965 [2d Dept 2016]); or 2) that based on “evidentiary material,” plaintiff has no valid cause of action against defendants. (Feggins v. Marks, 171 AD3d 1014 [2d Dept 2019]). Defendants fail to specify which of the above two 3211(a)(7) standards form the basis of their motion. However, as defendants submit no arguments regarding the complaint’s failure to state a cause of action within its four corners, this Court deems the motion as based on the ground that plaintiff has no valid cause of action against defendants, which they must establish by “evidentiary material.” Defendants claim that at the time of the alleged incident, Det. David Bailey was working within the scope of his employment with the New York City Police Department, while operating a vehicle which was owned by Next Act Marking LLC, a professional vehicle rental company, and leased to the City of New York. Defendant Next Act Marketing LLC moves to dismiss on the ground that as the lessor of the vehicle operated by Det. Bailey during the leased period, it has no liability regarding damages resulting from the operation of the vehicle. Section 49 USC §30106(a)(1) (hereinafter, the “Graves Amendment”) provides that an owner of a vehicle which rents or leases the vehicle “shall not be liable” by “reason of being the owner of the vehicle” for damage that “results from the operation of the vehicle” during the period of rental or lease, provided that the “owner is engaged in the “business of renting or leasing motor vehicles.” While the Graves Amendment insulates professional lessors and renters of motor vehicles from vicarious liability based on their ownership of rented or leased vehicles, Next Acting Marketing fails to submit any evidence to establish that it qualifies as an owner or lessor under the Statute. To show entitlement to dismissal under 3211(a)(7), defendant has the burden to submit “evidentiary material,” that conclusively proves that plaintiff does not have a cause of action against defendants, evidence which “utterly refutes plaintiff’s factual allegations.” (Feggins supra at 1016). Here, to establish that plaintiff has no cause of action against it under the Graves Amendment, Next Acting Marketing must submit evidence to show that at the time of the alleged incident, it was engaged in the trade of renting or leasing of motor vehicles, and that it was the lessor of the subject vehicle operated by Det. Bailey during the lease period. (See e.g., Zielinski v. New Jersey Tr. Corp., 170 AD3d 927 [2d Dept 2019]). Next Acting Marketing however, submits no evidence to substantiate that it was engaged in the business of leasing vehicles and was the lessor of the involved vehicle at the time of the incident, or that the incident occurred during the leased period. Rather, defendant relies on an attorney affirmation to prove entitlement to dismissal under Graves Amendment. However, an attorney affirmation has no “evidentiary value and is thus unavailing.” (See, Zuckerman v. City of New York, 49 NY2d 557, 563 (1980)). Next Act Marketing’s motion is accordingly denied. Det. Bailey’s moves to dismiss on the basis that the alleged incident occurred while he was discharging his duties within the course of his employment with New York City Police Department, and that plaintiff was required, but did not serve a notice of claim on the City of New York or commence the action within one year and ninety days. In an action commenced against a City of New York employee, but not against the City of New York, plaintiff is required to serve a notice of claim on the City within ninety days (General Municipal Law §50-e(1)(b)) and commence the action within one year and ninety days following the occurrence (General Municipal Law §50-I(1)(c)), provided that the City has a statutory duty to indemnify the employee. (See, Wagman v. Hooper, 138 AD3d 826 [2d Dept 2016], holding in actions against a City employee but not the City, notice of claim shall be served on the City only if the City is obliged to indemnify its employee. See also, Urraro v. Green, 483 NYS2d 80 [2nd Dept, 1984], holding that the one year and ninety-day statute of limitation governs actions commenced against a City employee, only if the City has a duty to indemnify the employee). The City has a duty to indemnify its employee, if the employee’s alleged act or omission which gave rise to the action, occurred while the employee was acting “within the scope of his public employment and the discharge of his duties.” (See General Municipal Law §50-k (3)). To prove that the incident occurred during the course of Det. Bailey’s employment, defendant submits a copy of the police report which refers to the vehicle operated by Det. Bailey as an “NYPD” vehicle. Defendant claims that the police report’s description of the Bailey vehicle as an “NYPD” vehicle, conclusively establishes that Det. Bailey was acting within the scope of his employment with the City of New York when the incident occurred. As the incident occurred when Det. Bailey was discharging his public duties as a police officer, defendant argues that the City has the duty to indemnify him. The City’s duty to indemnify, in turn, requires plaintiff to serve a notice of claim on the City and commence the action within one year and ninety days. Det. Bailey contends the action must be dismissed against him based on plaintiff’s failure to serve the requisite notice of claim and commence the action within the year and ninety days. However, to establish entitlement to dismissal, defendant must submit supporting documents in admissible form (See, Kaplan v. NY City Dept. of Health & Mental Hygiene, 142 AD3d 1050 [2d Dept 2016]). Thus, Det. Bailey has the burden to establish, by admissible evidence that he was discharging his public duties as a police officer at the time of the incident. Det. Bailey however fails to establish this burden as he relies on a police report which is uncertified, thus, inadmissible, and devoid of evidentiary value. (Cheul Soo Kang v. Violante, 877 NYS2d 354 [2d Dept 2009]). Had the police report been certified, its mere reference to the vehicle operated by Det. Bailey as an NYPD vehicle, would still be insufficient in and of itself to establish that the incident occurred while Det Bailey was acting “within the scope of his public employment and the discharge of his duties,” and not acting in his personal capacity. Det. Bailey submits no evidence regarding his work schedule, purpose, or destination at the time of the incident. At a bare minimum, Det. Bailey could have submitted an affidavit to establish that he was operating the subject vehicle in furtherance of his duties as a police officer. In addition, even if proven that the incident occurred within the scope of Det. Bailey’s employment, the City’s duty to indemnify him is expressly conditioned on Det. Bailey’s compliance with the provisions of General Municipal Law 50-k (4). (See, General Municipal Law §50-k (2), (4), §50-e(1)(g); Chambliss v. University Group Med. Assoc, 29 NYS 3d 48 [2d Dept, 2016]). Section §50-k (4) conditions the City’s duty to indemnify an employee on the employee’s delivery of the pleading or notice on Corporation Counsel within 10 days after she is served with such document, and further, on the full cooperation of the employee in the defense of such action or proceeding. Thus, to prevail on the motion, Det. Bailey is required to submit evidence of his compliance with the requirements of §50-k (4). Det. Bailey, however, submits no evidence to show that he delivered the endorsed summons to Corporation Counsel within 10 days of being served with it, or evidence that he fully cooperated with Corporation Counsel to prepare a defense in the instant matter. (See, General Municipal Law §50-k (4)). As defendant Bailey does not submit evidence to prove that the City has a statutory duty to indemnify him, he fails to establish that plaintiff was required to serve a notice of claim and commence the action within the abbreviated statuary period of one year and ninety days. For the reasons described herein, defendants failed their burden of establishing entitlement to dismissal under CPLR 3211(a)(7). Defendants’ motion to dismiss the complaint is denied in its entirety. Dated: July 29, 2019
