Tran v. Avis Rent a Car

• Decision Date: 13 December 2001
• Docket Number: 3,88932
• Parties: THY TRAN, Respondent, v AVIS RENT A CAR INC.(FN1) et al., Appellants. 88932 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT Calendar Date:
• Court: New York Supreme Court — Appellate Division

THY TRAN, Respondent v AVIS RENT A CAR INC.(FN1) et al., Appellants

88932

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: October 10, 2001

Decided and Entered: December 13, 2001

Rivkin, Radler & Kremer L.L.P. (Harris J. Zakarin of counsel), Uniondale, for Avis Rent A Car Inc. and another, appellants.

Carter, Conboy, Case, Blackmore, Maloney & Laird P.C. (Thomas Lavery of counsel), Albany, for Bryan Yee, appellant.

Bleakley, Platt & Schmidt (Vincent W. Crowe of counsel), White Plains, for respondent.

MEMORANDUM AND ORDER

Before: Cardona, P.J., Crew III, Carpinello, Mugglin and Rose, JJ.

Mugglin, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered September 13, 2000 in Schenectady County, which, inter alia, granted plaintiff's motion for partial summary judgment on the issue of liability.

Plaintiff, her boyfriend, and defendant Bryan Yee, all domiciliaries of New York, were traveling on a cross country trip to California in a vehicle owned by and rented from defendant Avis Rent A Car System Inc. (hereinafter Avis). At approximately 1:00 A.M. on Interstate Route 79, near Morgantown, West Virginia, plaintiff's boyfriend was in the rear seat, Yee was driving and plaintiff was in the front passenger seat. All three were wearing their seat belts, but plaintiff had fully reclined the back of her seat. Yee advised plaintiff that he was hungry, so she gave him some dried fruit. Yee then requested that plaintiff hand him the garbage bag which was near her feet so that he could dispose of the seeds. At her deposition, plaintiff testified that she sat up and placed the bag between the front seats. Yee asserted, on the other hand, that plaintiff held the bag for him. In any event, Yee admittedly took his eyes from the roadway to dispose of seeds in the bag, the car left the roadway, overturned several times in the median and plaintiff was seriously injured when she was partially ejected through one of the rear windows of the vehicle. Neither of the other occupants was injured in the accident.

Plaintiff commenced this action seeking damages for the injuries she sustained. After the completion of discovery, plaintiff moved to strike defendants' affirmative defenses based on comparative fault and the seat belt defense and for partial summary judgment on the issue of liability. Alternatively, plaintiff sought a ruling that the seat belt defense is governed by West Virginia law, rather than New York law. Yee opposed the motions and cross-moved for permission to amend his bill of particulars to set forth additional acts constituting negligence on the part of plaintiff. Avis submitted a memorandum of law in which it contended that issues of fact precluded striking the affirmative defenses and granting plaintiff partial summary judgment on the issue of liability, and that New York law applies to the seat belt defense. Supreme Court found New York law to be applicable, struck defendants' affirmative defenses and granted plaintiff partial summary judgment on the issue of liability and directed an inquest with respect to damages. Defendants appeal.

We first address the propriety of Supreme Court's grant of partial summary judgment to plaintiff on the issue of liability and the striking of defendants' affirmative defenses predicated on comparative fault pleaded in opposition. Our review of the record leads to an affirmance of these determinations. Defendants have failed to set forth any evidence which rebuts plaintiff's evidence -- found in Yee's deposition and the accident report -- which clearly establish that he was driving the vehicle at approximately 65 to 75 miles per hour over a wet surface, around 1:00 A.M., and was unable to negotiate a curve because he took his eyes off the road to spit seeds into a bag. Under these circumstances, courts routinely hold such conduct constitutes negligence as a matter of law (see, Andre v Pomeroy, 35 N.Y.2d 361, 365; Altmajer v Morley, 274 A.D.2d 364, 365; Metzler v Brawley, 209 A.D.2d 487; Aurnou v Craig, 184 A.D.2d 1048, 1048-1049; Opalek v Oshrain, 33 A.D.2d 521; Gerard v Inglese, 11 A.D.2d 381). Nothing in...