Strickani v. Hertz Vehicles LLC
| Docket Number | Index No. 513955/2021 |
| Decision Date | 04 August 2023 |
| Citation | 2023 NY Slip Op 32746 (U) |
| Parties | SKENDER STRICKANI, Plaintiff, v. HERTZ VEHICLES LLC and "JOHN DOE," a fictitious name/person as unknown operator of the subject vehicle, Defendants. |
| Court | New York Supreme Court |
At an I.A.S Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 4th day of August 2023.
Recitation as required by CPLR § 2219(a), of the papers considered in the review of Plaintiff and Defendants' motion.
Papers NYSCEF Nos.
Notice of Motion and Affidavits/Affirmations Annexed............................ 39-47; 48-55
Affirmation in Opposition Papers........................ 48-55; 56-59
Reply to Opposition Papers.................................. 62; 61
Upon the foregoing papers, Plaintiff, Skender Strickani ("Plaintiff'), moves (MS#3) for an order, pursuant to CPLR § 3212 granting summary judgment on the issue of liability, dismissing Defendant, Hertz Vehicles LLC's ("Defendant") affirmative defenses of comparative fault and Graves Amendment. Defendant opposes Plaintiff's motion and cross-moves (MS#4) for an order pursuant to CPLR § 3211(a)(7) dismissing Plaintiff's complaint on the grounds that the pleadings fail to state a cause of action upon which relief may be granted.
This is an action to recover damages for personal injuries allegedly sustained by Plaintiff arising from a motor vehicle collision that occurred on August 15, 2020 near the intersection of 20th Avenue and 57th Street, in Brooklyn, New York. It is undisputed that at the time the incident occurred, Plaintiff was riding his bike on 20th Avenue when he was involved in a collision with a vehicle[1] owned by Defendant. Police officers responded to the scene, and a police accident report was prepared after the officers spoke with Plaintiff.
In support of the branches of Plaintiffs motion for summary judgment and to dismiss Defendant's affirmative defense of comparative fault, Plaintiff submitted a certified copy of the police accident report ("accident report") and his own affidavit wherein, Plaintiff avers that when he was half way through the intersection of 20th Avenue and 57th Street, Defendant's vehicle, "came speeding, failed to stop at the stop sign and struck" the side of his bicycle. Plaintiff argued that since 57th Street is governed by a stop sign at its intersection with 20th Avenue, he had the right-of-way while proceeding through the intersection and that Defendant's vehicle failed to yield the right-of-way to his bicycle. Thus Defendant violated Vehicle and Traffic Laws ("VTL") §§ 1172(a)[2] and 1142(a)[3], which constitute negligence as a matter of law. Additionally, Plaintiff argued that he was not comparatively at fault for the subject incident since he was halfway through the intersection with the right of way when the-incident occurred. In support of the branch of Plaintiff's motion seeking to dismiss Defendant's affirmative defense of the Graves Amendment, Plaintiff submitted a copy of Hertz's 7-day rental agreement ("rental agreement")[4]. Plaintiff argued that since the subject incident occurred sixty-six (66) days after the rental agreement period had expired, the affirmative defense of the Graves Amendment should be dismissed.
In opposition to Plaintiff's motion, Defendant submitted an affidavit by its Assistant Secretary, Dennis McGinley ("Mr. McGinley")[5] who states in his affidavit, titled "Second McGinley Affidavit" ("2nd Affidavit")[6], that when the renter fails to return the rental vehicle at the appropriate time, the rental agreement remains in effect and the renter is still required to comply with the terms and conditions of the rental agreement. In addition, Mr. McGinley avers that once a rental vehicle is overdue, Hertz will make attempts to contact the renter to obtain possession of the rental vehicle. Defendant also submitted a copy of an invoice[7] dated approximately six (6) months after the rental agreement's end date of June 10 2023, in which Hertz charged non-party Ryan Whitten ("renter") for the entire rental period from June 3, 2020 to November 17, 2020. Defendant argued that the Graves Amendment does apply since the status of the rental vehicle did not change simply because the renter did not return the vehicle on time.
In support of Defendant's cross motion dismissing Plaintiffs complaint pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, Defendant submitted Mr. McGinley's 1st Affidavit wherein he stated that the subject vehicle received routine service and maintenance and that there had not been any known safety issues or manufacturer recalls. In further support of its contention that Defendant did not negligently maintain the subject vehicle, Defendant submitted copies of the vehicle's service maintenance records[8]. Additionally, Mr. McGinley avers in his 1st Affidavit that since the renter has never been associated with or was Defendant's employee Plaintiff has no factual basis to attribute any negligence to Defendant.
In opposition to Defendant's cross motion, Plaintiff argued that the court should deny Defendant's motion since Defendant has failed to satisfy its burden on a motion to dismiss a complaint. In support of his position, Plaintiff submitted a copy of Defendant's Response to Discovery Order, dated February 2, 2023 ("Defendant's Discovery Response"). Plaintiff argued that while Mr. McGinley attested to the procedure Defendant engages in once a rental vehicle is overdue, it proffered no evidence to show that its own procedures were followed. While Mr. McGinley stated in his 2nd Affidavit that Defendant will make attempts to contact the renter to obtain possession of the rental vehicle when the rental vehicle is overdue, Defendant's Discovery Response indicated that the invoice was the only proof of any effort made to contact the renter. Additionally, while Mr. McGinley stated that once a rental vehicle is overdue, Hertz will charge the renter's credit card for applicable rental charges until the credit card stops authorizing payment, Defendant's Discovery Response indicated that Defendant is not in possession of any receipts showing that the renter's credit card was charged or that attempts to charge were made and not honored by the credit card company when the subject vehicle was overdue. Based upon these contradictions, Plaintiff contends that Defendant should not be entitled to use the Graves Amendment and therefore should be held vicariously liable for the negligence of the renter operating Defendant's vehicle at the time of the incident.
In considering a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Pirozzi v Garvin, 185 A.D.3d 848, 850 [2d; Dept. 2020]; Shah v Exxis, Inc., 138 A.D.3d 970, 971 [2d Dept. 2016]; Leon v Martinez, 84 N.Y.2d 83, 87 [1994]). A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR § 3211(a)(7) (see CPLR § 3211 [c]; Mawere v Landau, 130 A.D.3d 986, 988 [2d Dept. 2015]; Sokol v Leader, 74 A.D.3d 1180, 1181 [2d Dept. 2010]). When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), and the motion has not been converted to one for summary judgment, the sole criterion on such a motion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion to dismiss will fail (Leader v Steinway, Inc., 180 A.D.3d 886, 888 [2d Dept. 2020]; Leon v Martinez, 84 N.Y.2d 83 at 88; see Guggenheimer v Ginzburg, 43 SlY2d 268, 275 [1977]).
Under VTL § 388, proof of ownership of a motor vehicle creates a presumption that the driver was using the vehicle with the owner's permission, express or implied, and that presumption continues until there is substantial evidence to the contrary (Utica Mut. Ins. Co. v Lahey, 95 A.D.2d 150, 152 [2d Dept. 1983]). "Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner" (see VTL § 388[1]). However, the Graves Amendment shields the owner of a leased or rented motor vehicle from liability for personal injuries resulting from the use of such vehicle "during the period of the rental or lease, if (1) the owner ... is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner" (see 49 USC § 30106[a]; Keys v PV Holdings, 205 A.D.3d 787, 788 [2d Dept. 2022]; Edwards v J&D Express Serv. Corp., 180 A.D.3d 871, 873 [2d Dept. 2020 ]; Cioffi v S.M. Foods, Inc., 178 A.D.3d 1006, 1012 [2d Dept. 2019]).
In addressing Defendant's motion pursuant to CPLR § 3211(a)(7), to dismiss the complaint insofar as asserted against it on the ground that it is entitled to the protection of the Graves Amendment, the Court finds that the affidavits .and documents annexed thereto submitted by Defendant failed to establish as a matter of law that Plaintiff has no cause of action. Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR § 3211 (a)(7), and the motion is not converted...
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