Ramos v. Keston Brown, Gristede's Foods, Inc.
| Decision Date | 02 September 2014 |
| Docket Number | Third-Party Index No. 83763/2011,Index No. 309164/2009,Index No. 303079/2009,Third-Party Index No. 83740/2011 |
| Court | New York Supreme Court |
| Parties | RAYNALDO RAMOS, as administrator of the estate of YSEMNY RAMOS, deceased, and RAYNALDO RAMOS, individually, Plaintiffs, v. KESTON BROWN, GRISTEDE'S FOODS, INC., RED APPLE GROUP INC., RED APPLE LEASING, INC., GRISTEDE'S NY, LLC and GRISTEDE'S FOODS NY, INC., Defendants. KESTON BROWN, Third-Party Plaintiff, v. AFRICAN AMERICAN AUTO REPAIR INC., Third-Party Defendant. TASSIA KATSIAMBANIS, Plaintiff, v. KESTON BROWN, GRISTEDES FOODS, INC. and RED APPLE GROUP INC., Defendants. KESTON BROWN, Third-Party Plaintiff, v. AFRICAN AMERICAN AUTO REPAIR INC., Third-Party Defendant. |
DECISION AND ORDER
Action #1
Action #2
PRESENT: Hon. Lucindo Suarez
Upon the notice of motion dated February 12, 2014 of defendants Gristede's Foods, Inc.,Red Apple Group Inc., Red Apple Leasing Inc., Gristede's NY, LLC and Gristede's Foods NY, Inc. and the affirmation, affidavits (5) and exhibits submitted in support thereof; the notice of cross-motion dated March 10,2014 of plaintiff in Action #1 and the affirmation and exhibits submitted in support thereof; the exhibits served by plaintiff in Action #1 on March 13, 2014; the notice of cross-motion dated March 18, 2014 of plaintiff in Action #2 and the affirmation and exhibit submitted in support thereof; the supplemental affirmation dated March 20, 2014 of plaintiff in Action #1 and the exhibits submitted therewith; the affirmation in opposition and reply dated April 22, 2014 of defendants Gristede's Foods, Inc., Red Apple Group Inc., Red Apple Leasing Inc., Gristede's NY, LLC and Gristede's Foods NY, Inc. and the exhibit submitted therewith; the affirmation in reply dated April 30, 2014 of plaintiff in Action #1 and the exhibits submitted therewith; the affirmation in reply dated May 1, 2014 of plaintiff in Action #2; and due deliberation; the court finds:
These actions stem from a 2009 motor vehicle accident in which a van driven by defendant Keston Brown ("Brown") struck plaintiff Raynaldo Ramos's ("Ramos") decedent and plaintiff Tassia Katsiambanis ("Katsiambanis"). The complaints allege that defendants employed Brown and were negligent, careless and reckless in their ownership, operation, management, maintenance, supervision, use and control of the vehicle. Third-party defendant African American Auto Repair Inc. ("AAAR") serviced the vehicle.
Defendants Gristede's Foods, Inc. ("Gristede's Foods"), Red Apple Group Inc. ("Red Apple Group"), Red Apple Leasing Inc. ("Red Apple Leasing"), Gristede's NY, LLC ("Gristede's NY") and Gristede's Foods NY, Inc. ("Gristede's Foods NY") (collectively, "the Gristede's defendants") move for summary judgment dismissing both complaints and all cross-claims on the grounds that 1) plaintiffs have not alleged any statutory violation that would render defendants vicariously liable for Brown's conduct; 2) defendant Red Apple Leasing, the owner of the van, is not liable by virtue of49 U.S.C. § 30106, commonly referred to as the "Graves Amendment;" 3) they did not own, operate, maintain, manage, supervise, repair or control the van; and 4) they did not employ Brown.
MOTION FOR SUMMARY JUDGMENT
Failure to Allege a Statutory Violation
The Gristede's defendants argue that plaintiffs have not alleged or identified violations of statutes such as Vehicle and Traffic Law §128 or § 388 that would render them vicariously liable for the accident. Vehicle and Traffic Law § 388(1) renders vehicle owners liable for injuries resulting from the negligent permissive use of their vehicles; Vehicle and Traffic Law §128 defines "owner." However, Vehicle and Traffic Law § 388 is not a statute that creates liability by virtue of its being "violated." It is a "statutory command," see Metropolitan Group Prop. & Cas. Ins. Co. v. Wellington, 42 Misc.3d 270, 280, 975 N.Y.S.2d 617, 625 (1st Dist Nassau County 2013), imputing vicarious liability that requires only ownership and permissive use. The complaint alleges that defendants owned the van, that they were negligent in such ownership and that the permissive user was negligent. The basis of liability is explicitly stated and encompassed by the statute. See Nunez v. Jenkins, 8 A.D.3d 151, 779 N.Y.S.2d 55 (1st Dep't 2004).
Furthermore, Vehicle and Traffic Law §128 and § 388 relate solely to the relationship between an owner and operator of a motor vehicle. The Gristede's defendants could also be found liable on a respondeat superior theory if Brown was their employee acting within the scope of his employment at the time of the accident. See e.g. Homey v. Tisyl Taxi Corp., 93 A.D.2d 291,461 N.Y.S.2d 799 (1st Dep't 1983). Thus, the mere failure to explicitly state that defendants "violated" Vehicle and Traffic Law § 388 does not entitle the Gristede's defendants to summary judgment.
Graves Amendment
Red Apple Leasing argues that as the registered owner of the van, it is not liable by virtue ofthe Graves Amendment. Pursuant to the Graves Amendment, applicable to this action because commenced after August 10, 2005, an "owner (or an affiliate of the owner) . . . engaged in the trade or business of renting or leasing motor vehicles," is not vicariously liable under Vehicle and Traffic Law § 388 for the negligence of the defendant vehicle operator. See Hall v. Elrac, Inc., 52 A.D.3d 262, 859 N.Y.S.2d 641 (1st Dep't 2008).
The Gristede's defendants submit the affidavit of Mark Kassner ("Kassner"), Chief Financial Officer and Vice President of Red Apple Leasing and its successor, Red Apple Lease Corporation, who averred that Red Apple Leasing was in the business of leasing vehicles and that, because it leased the van to non-party Red Apple Supermarkets, Inc. ("Red Apple Supermarkets"), Red Apple Leasing did not have possession or control of the van. Kassner averred that Red Apple Leasing and its successor, Red Apple Lease Corporation were in the business of vehicle leasing and that Red Apple Leasing leased every vehicle it owned, including the subject van. Although movant did not annex a lease for the particular vehicle in question, Kassner authenticated a 1991 roster of vehicles registered to Red Apple Leasing and a 1994 billing schedule sent by Red Apple Leasing to Red Apple Supermarkets, both of which listed the subject van. However, in the absence of a lease and/or proof that the van had been continuously leased since such time, records from 1991 and 1994 are simply too remote to be probative of the lessor and lessee of the vehicle in 2009.
Ownership of the Van
Gristede's Foods, Red Apple Group, Gristede's NY and Gristede's Foods NY argue that they did not own, operate, maintain, manage, supervise, repair or control the van. They submit the 1990 title and the 2008 registration to the vehicle in the name of Red Apple Leasing. They further submit the affidavit of Renee Flores ("Flores''), Executive Vice President of Human Resources, Asset Management and Administration for Gristede's Foods, Gristede's NY and Gristede's FoodsNY, who averred, based upon a familiarity with their business and records, that those defendants did not own, lease, possess, or have responsibility for operating, managing, maintaining, supervising, repairing or controlling the van.
Defendants further submit the affidavit of Robert A. Zorn ("Zorn"), Executive Vice President of Red Apple Group, who averred that Red Apple Group is a real estate company that does not own or lease vehicles, including the subject van, and that it did not possess or have responsibility for operating, managing, maintaining, supervising, repairing or controlling the van. Defendants also rely on Kassner's assertion that, because it leased the van to non-party Red Apple Supermarkets, Red Apple Leasing did not have possession or control of the van.
Charles Criscuolo ("Criscuolo"), the Senior Executive Vice President of non-party Namdor, Inc. ("Namdor"), successor to lessee Red Apple Supermarkets, averred that Red Apple Supermarkets had only "nominal" control over the van because its policy was to have the drivers who used vehicles daily to control, maintain, manage and keep the vehicles. Defendants further rely on the deposition testimony of Brown's foreman (and uncle), Michael Francis ("Francis"), that Francis was responsible for maintenance of the subject vehicle and that upon learning that a vehicle required servicing, he would have the vehicle serviced by AAAR.
In response to this prima facie showing, Ramos points to instances in attorney affirmations submitted on behalf of the Gristede's defendants during the course of motion practice in which the Gristede's defendants purportedly conceded various points contested here, such as ownership of the van. The first such statement appeared in paragraph six of the October 17, 2012 affirmation submitted in support of a motion to strike the third-party defendant's answer for failure to provide discovery, where in an introductory paragraph counsel referred to "a Gristede's van," without defining to whom the word "Gristede's" was intended to refer. While careless drafting ondefendants' part, the affirmation of an attorney does not constitute admissible evidence. See Zuckerman v. New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980).
The second such statement appeared in paragraph ten of the April 14, 2011 affirmation submitted in opposition to plaintiff's motion to amend the complaint to add a claim for punitive damages: "punitive damages in this case are patently improper as to Gristede's as the owner of the van." By defendants' definition, however, "Gristede's" merely referred collectively to all the Gristede's defendants and was not a statement or admission as to the owner of the van. In context, the argument referred to vehicle ownership in the abstract where a plaintiff attempts to assert a claim for punitive damages...
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