Bravo v. Vargas

• Decision Date: 08 January 2014
• Parties: Rubisela BRAVO, appellant, v. Eric Mundo VARGAS, et al., respondents.
• Court: New York Supreme Court — Appellate Division

113 A.D.3d 579

978 N.Y.S.2d 307

2014 N.Y. Slip Op. 00082

Rubisela BRAVO, appellant,

v.Eric Mundo VARGAS, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 8, 2014.

Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Gabriel A. Arce–Yee and Brian J. Shoot of counsel), for appellant.

Brand, Glick & Brand, P.C., Garden City, N.Y. (Peter M. Khrinenko of counsel), for respondents Eric Mundo Vargas and Enterprise Rent–A–Car Company of Boston, Inc.

Lavin, O'Neil, Ricci, Cedrone & DiSipio, New York, N.Y. (Timothy J. McHugh of counsel), for respondent Sunstar Vending, Inc.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated October 18, 2012, as granted that branch of the motion of the defendants Eric Mundo Vargas and Enterprise Rent–A–Car Company of Boston, Inc., which was for summary judgment dismissing the complaint insofar as asserted against them, and that branch of the cross motion of the defendant Sunstar Vending, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendants Eric Mundo Vargas and Enterprise Rent–A–Car Company of Boston, Inc., which was for summary judgment dismissing the complaint insofar as asserted against the defendant Eric Mundo Vargas, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting that branch of the cross motion of Sunstar Vending, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it, and substitutingtherefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff by the defendant Sunstar Vending, Inc., and the defendant Eric Mundo Vargas.

The plaintiff was a passenger in a rental car owned by the defendant Enterprise Rent–A–Car Company of Boston, Inc. (hereinafter Enterprise), and operated by the defendant Eric Mundo Vargas. The plaintiff allegedly was injured when Vargas crashed into a utility pole on the side of a roadway. The plaintiff commenced this personal injury action against Vargas, Enterprise, and Vargas's employer, Sunstar Vending Inc. (hereinafter Sunstar), which the plaintiff alleged was vicariously liable for Vargas's conduct. Enterprise and Vargas together moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and Sunstar cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court granted the motion and the cross motion. The plaintiff appeals.

Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the motion of Vargas and Enterprise which was for summary judgment dismissing the complaint insofar as asserted against Enterprise. Under the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles, and (ii) engaged in no negligence or criminal wrongdoing ( see49 USC § 30106[a]; Ballatore v. HUB Truck Rental Corp., 83 A.D.3d 978, 979, 922 N.Y.S.2d 180).

Here, Vargas and Enterprise established Enterprise's prima facie entitlement to judgment as a matter of law by showing that Enterprise was engaged in the business of renting vehicles and was not negligent in entrusting the vehicle to Vargas or in maintaining the vehicle's brakes, and that the accident was not caused by brake failure ( see Ballatore v. HUB Truck Rental Corp., 83 A.D.3d at 980, 922 N.Y.S.2d 180). In opposition to this showing, the plaintiff failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

However, the Supreme Court erred in awarding summary judgment to Vargas and Sunstar dismissing the complaint insofar as asserted against them.

Under the emergency doctrine, actors “faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternate courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency” (Tarnavska v. Manhattan & Bronx Surface Tr. Operating Auth., 106 A.D.3d 1079, 1089, 966 N.Y.S.2d 171 [internal quotation marks omitted]; see Pavane v. Marte, 109 A.D.3d 970, 971, 971 N.Y.S.2d 562; Hendrickson v. Philbor Motors, Inc., 101 A.D.3d 812, 813, 954 N.Y.S.2d 898). Both the existence of an emergency and the reasonableness of a party's response to it generally present issues of fact ( see Pavane v. Marte, 109 A.D.3d at 971, 971 N.Y.S.2d 562...