Elson v. Defren
| Decision Date | 29 May 2001 |
| Docket Number | A-C |
| Citation | 283 A.D.2d 109,726 N.Y.S.2d 407 |
| Parties | (A.D. 1 Dept. 2001) Robert Elson, et al., Plaintiffs-Respondents, v. Kenneth M. Defren, et al., Defendants-Appellants, Avis Rent-ar, Defendant-Respondent. Howard Goldfrach, et al., Plaintiffs-Respondents, v. Kenneth M. Defren, et al., Defendants-Appellants, Avis Rent-ar, etc., et al., Defendants-Respondents, General Motors, Corp., Defendant. 3766A |
| Court | New York Supreme Court — Appellate Division |
Defendants Defren, Rowland Worldwide, Inc. and The Rowland Company appeal from an order of the Supreme Court, New York County (Richard Lowe, III, J.), entered November 14, 2000, which, to the extent appealed from as limited by the briefs, granted defendant Avis' motion for, inter alia, summary judgment dismissing the complaint as against it. [Copyrighted Material Omitted] Brian J. Isaac, of counsel (Ira Bartfield, on the brief, Pollack, Pollack, Isaac & DeCicco and Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, attorneys) for plaintiffs-respondents Robert and Roni Elson,
Dan Schiavetta, Jr., of counsel (Steven J. Ahmuty, Jr., on the brief, Shaub, Ahmuty, Citrin & Spratt, LLP, and Cerussi & Spring, P.C., attorneys) for defendants-appellants Defren, Rowland Worldwide, Inc. and The Rowland Company,
Stephanie M. Holzback, of counsel (Nancy Lyness, on the brief, White, Fleischner & Fino, attorneys) for defendants-respondents Avis Rent-A-Car d/b/a PV Holding Corp. and Avis Incorporated & Subsidiaries.
Joseph P. Sullivan, P.J., Milton L. Williams, Richard T. Andrias, Israel Rubin and David Friedman, JJ.
This lawsuit arises out of an automobile accident that occurred on January 20, 1998 near Coeur d'Alene, Idaho when a 1998 Chevrolet Blazer driven by Kenneth M. Defren, on a business trip at the time for his employer, Rowland Worldwide, Inc., collided with a vehicle driven by Keith G. Roth, an Idaho resident, not a party to this litigation. Defren and Rowland are defendants in each of these actions. Defren's passengers were Robert Elson and Howard Goldfrach, plaintiffs in these actions. According to the Idaho police accident report, Defren was driving southbound on Interstate 95 when he lost control of his vehicle on the icy roadway and it spun out of control into the northbound lane and struck the Roth vehicle. Two days before the accident, Defren had rented the Blazer from Avis Rent-A-Car, also a defendant in both actions, at Spokane International Airport. As a result of the accident, the Blazer was damaged beyond repair. Elson and Goldfrach, both residents of New York, as is Defren, were injured in the accident and commenced separate actions, joined for trial, that included spousal derivative claims. It is undisputed that at the time of the accident Defren was acting on behalf of his employer, Rowland.
In May, 1999, Defren and Rowland moved and Avis cross-moved to dismiss both actions on the ground of forum non conveniens. The Elsons cross-moved for partial summary judgment on the issue of liability premised on Defren's violation of Idaho Code § 49-630, which requires operators to keep their vehicles on the right side of the road and a breach of which is deemed negligence per se. (See, Rosenberg v Toetly, 93 Idaho 135, 456 P2d 779.) The court denied dismissal and granted the Elsons' cross-motion for summary judgment as to liability finding that Defren failed "to provide a non-negligent explanation for the accident." Defendants appealed from both orders, but Avis subsequently withdrew its appeals. Both orders were affirmed by this Court (Elson v Defren, 279 A.D.2d 361, 719 N.Y.S.2d 246.)
In December 1999, the Goldfrachs moved for partial summary judgment against Defren, Rowland and Avis on the issue of liability, arguing that the defendants were collaterally estopped from contesting their liability on the basis of the grant of summary judgment against them in favor of the Elsons. The defendants opposed the motion on the basis, inter alia, of the pending appeal of the prior grant of summary judgment. Without further explanation, the court granted summary judgment to the Goldfrachs on liability against defendants Defren, Rowland and Avis, all of whom filed a notice of appeal. As with the case of the appeal from the grant of partial summary judgment to the Elsons, Avis' appeal was subsequently withdrawn.
Prior to withdrawing these appeals, by order to show cause dated October 17, 2000 Avis had moved for summary judgment dismissing the Elsons' complaint on the ground that Avis was not vicariously liable based on permissive use for any negligence on Defren's part, and that the record was devoid of any evidence to support any other grounds for a finding of negligence against it. Avis also sought a correction of the Goldfrach decision to the extent it enlarged the earlier decision in favor of the Elsons to encompass a determination of liability against Avis.
In seeking such relief, Avis initially noted that neither the Elsons nor the Goldfrachs had contended that Avis was vicariously liable or had otherwise raised the issue of Avis' liability. Avis further asserted that New York's statutory imposition of vicarious liability based on the presumption of permissive use, Vehicle and Traffic Law § 388(1), would not apply to this accident because the statutory language explicitly refers to automobiles "used or operated" within the State of New York and there is no evidence that the Avis-owned Blazer was ever used or operated in New York. Idaho's own vicarious liability statute, Idaho Code § 49-2417, analogous to the vicarious liability provisions of Vehicle and Traffic Law § 388, did not apply, Avis argued, because it is a statute of loss allocation, not conduct regulation, and New York will not apply another state's loss allocation rules to the issue of a vehicle owner's liability where, as here, the plaintiffs and "primary" defendants are New York domiciliaries. Moreover, Avis argued, the Idaho vicarious liability statute is limited in application to cases venued in Idaho and which involve vehicles licensed and registered in that state. No authority was cited for any of the foregoing propositions.
In an order entered November 14, 2000, the IAS court, without further elaboration, granted Avis' motion for summary judgment dismissing both complaints against Avis on the ground that Vehicle and Traffic Law § 388 did not apply and "corrected" its order granting summary judgment to the Goldfrachs to the extent of denying the Goldfrachs' motion for such relief as against Avis. Apparently, the IAS court concluded that under New York's choice-of-law principles Idaho law did not apply to the issue of Avis' vicarious liability arising out of its ownership of the Blazer and that under New York law, which did apply, Avis could not be vicariously liable, as a matter of law, because Vehicle and Traffic Law § 388(1) does not impose such liability on owners of vehicles that are "used or operated" exclusively outside of New York. Defren and Rowland appeal from this determination. Three weeks later Avis, as noted, withdrew its appeals from the earlier orders, which granted summary judgment in favor of the Elsons and the Goldfrachs. We reverse.
To begin with, Avis' motion was procedurally flawed. The nature of a motion is determined by its substance, not prayer for relief. Although denominated a motion for summary judgment, Avis' motion, brought one year after the entry of the order granting summary judgment in favor of the Elsons, eight months after the entry of the order granting such relief in favor of the Goldfrachs and after Avis had perfected its appeals therefrom, was, in reality, a motion to renew the prior grant of summary judgment. Avis argued that the summary judgment award in favor of the Elsons did not extend to Avis and that the order in favor of the Goldfrachs had enlarged the scope of the earlier order by extending the grant of summary judgment to include Avis. This position, of course, was inconsistent with Avis' appeal from the earlier grant of summary judgment in favor of the Elsons.
In this motion, Avis set forth entirely different grounds to relieve itself of liability -- that neither the New York nor Idaho vicarious liability statute applied to this action and that no other theory of liability had been advanced. In addition, in support of its contention that the New York vicarious liability statute was inapplicable, Avis submitted additional evidence, which showed that the vehicle had never been used or operated in the State of New York. There was, however, no explanation for not presenting these facts in opposition to plaintiffs' original motions. (Foley v Roche, 68 A.D.2d 558, 568.) Thus, renewal did not lie. And, finally, although Avis purportedly sought "correction" of the order granting summary judgment to the Goldfrachs against Avis on the issue of liability, its motion was not one for resettlement, a "procedure designed solely to correct errors or omissions as to form, or for clarification [that] may not be used to effect a substantive change in or to amplify the prior decision of the court." (Id. at 566.)
In any event, even if the merits of Avis' motion for summary judgment were to be reached, it should be denied. "An inevitable consequence of a mobile society, where people and goods routinely cross state and national borders, is that disputes may implicate the interests of several jurisdictions having conflicting laws." (Cooney v Osgood Machinery, Inc., 81 N.Y.2d 66, 70.) A special body of rules for the resolution of such disputes has thus developed "to promote...
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