Preview
FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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DARIO ROSARIO, Index No.: 516285/2019
Plaintiff, AFFIRMATION IN
OPPOSITION
-against-
SUNBELT RENTALS, INC., PEREZ JAVIER,
and BROOKLYN GC, QUALITY FACILITY SOLUTIONS
CORP.,
Defendants
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SUNBELT RENTALS, INC.,
Third-Party Plaintiff,
-against-
BROOKLYN GC LLC,
Third-Party Defendant,
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BROOKLYN GC LLC,
Second Third-Party Plaintiff,
-against-
QUALITY FACILITY SOLUTIONS CORP.,
Second Third-Party Defendant.
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WILLIAM COHEN, ESQ., an attorney admitted to practice law before the various Courts
of the State of New York, hereby affirms under penalty of perjury that the following, except that
which is asserted upon information and belief, affirmant, based on office and client records,
believes to be true.
1. I am an attorney with MOLOD SPITZ & DeSANTIS, P.C., attorneys of record for
Defendant PEREZ JAVIER and Defendant/Second Third-Party Defendant QUALITY
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FACILITY SOLUTIONS CORP., in the instant matter and am fully familiar with the facts
and circumstances herein.
2. This Affirmation is being submitted in opposition to the motion brought on behalf of
Defendant/ Third-Party Plaintiff SUNBELT RENTALS, INC pursuant to CPLR
3211(a)(7) and CPLR 3212.
3. As will be shown below, the motion must be denied as the movant has failed to establish
with admissible evidence its entitlement to summary judgment. Additionally, the motion
is premature as there are specific threshold issues of law and fact that can only be addressed
with further discovery including depositions.
I. PRELIMINARILY, THE BASIS FOR THE MOTION TO DISMISS
PURSUANT TO CPLR 3211(a)(7) IS IMPROPER.
4. The basis for the motion to dismiss is not proper. The complaint clearly states a cause of
action. The use of documentation for a motion to dismiss is to be used on the grounds of
CPLR 3211(a)(1) documentary evidence, which has already been waived. “ On a motion
pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, 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 ” (Shah v. Exxis, Inc., 138 A.D.3d 970, 971,; see Goshen v. Mutual
Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858,; Leon v. Martinez, 84 N.Y.2d
at 87–88,). The court's function is to "accept … each and every allegation forwarded by the
plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish
the truth of these averments before the trier of the facts'" 219 Broadway Corp. v
Alexander's, Inc., 46 NY2d 506, 509, [1979]). The pleading is to be liberally construed and
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the pleader afforded the benefit of every possible favorable inference (511 West 232nd
Owners Corp., supra).
II. THE MOVANT FAILED TO ESTABLISH A PRIMA FACIE SHOWING FOR
SUMMARY JUDGMENT
5. To establish prima facie entitlement to judgment as a matter of law, a movant for summary
judgment must come forward with evidentiary proof, in admissible form, demonstrating
the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,
[1986]; Zuckerman v City of New York, 49 NY2d 557). The failure to make such showing
requires the denial of the motion, regardless of the sufficiency of the opposing papers
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, [1985]; McDonald v Mauss, 38
AD3d 727, [2007]).
6. As will be shown below, the movant failed to provide evidentiary proof to establish prima
facie entitlement to summary judgment.
A. THE MOVANT’S SUPPORTING DOCUMENTS ARE INADMISSIBALE
PURSUANT TO THE BUSINESS RECORD RULE OF CPLR 4518(A)
7. Itis the business record itself, not the foundational affidavit, that serves as proof of the
matter asserted. U.S. Bank Trust, N.A. v. Vanterpool, 189 A.D.3d 1516 (2d Dep't 2020).
8. According to CPLR 4518 (a):
“Any writing or record, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence
in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular
course of any business and that it was the regular course of such business to make it, at the time of
the act, transaction, occurrence or event, or within a reasonable time thereafter.”
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9. In this case, none of the movant’s supporting affidavits lay the proper foundation for the
supporting documents, pursuant to CPLR 4518(a). There is no mention in any of the
affidavits of the documents being made in the regular course of business and that it was in
the regular course of business to make it.
10. The affidavit of Sean Derencin, (Movant Exhibit B), includes copies of delivery tickets
of the subject forklift. There is no mention in the affidavit of the delivery tickets being
made in the regular course of business and that it was in the regular course of business to
make it. As such, those documents are inadmissible as hearsay.
11. The affidavit of Jospeh Pennachio, (Movant Exhibit A), includes a copy of the alleged
Credit and Rental Agreement between movant and co-defendant Brooklyn GC LLC, a copy
of terms and agreements of such agreement obtained from a website, a copy of the alleged
contract between movant and co-defendant Brooklyn GC LLC, as well as another copy of
the terms and conditions. Again, there is no mention in the affidavit of these documents
being made in the regular course of business and that it was in the regular course of business
to make them. As such, those documents are inadmissible as hearsay.
12. The affidavit of John Barbato, (Movant Exhibit C) includes copies of inspection reports
maintenance records, and pickup tickets relating to the subject forklift. There is no mention
in the affidavit of these documents being made in the regular course of business and that it
was in the regular course of business to make them. As such, those documents are also
inadmissible as hearsay.
13. In this case, the documents have not been properly authenticated. The proper foundation
was not met in the affidavits. As such, the documents are inadmissible and can not be used
for proof in support of the motion. Since the documents are not admissible, the movant can
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not establish its prima facie entitlement to summary judgment.
III. THE MOTION MUST BE DENIED AS PREMATURE AS DISCOVERY IS
NEEDED TO DETERMINE WHETHER THE FORKLIFT IS A MOTOR
VEHICLE PURSUANT TO THE VEHICLE AND TRAFFIC LAW
14. The Vehicle and Traffic Law applies to the use of a motor vehicle on public highways
(VTL § 300). A “motor vehicle” is defined by VTL § 125 as “[e]very vehicle operated or
driven upon a public highway which is propelled by any power other than muscular
power.” The statute excludes vehicles such as vehicles running on rails or tracks,
snowmobiles, all-terrain vehicles, and others, none of which include a forklift.
15. The determination as to the status of the forklift turns on the issue of whether it was
“operated or driven upon a public highway” (see Nunez v Olympic Fence & Railing Co.,
Inc., 138 AD3d 807, 808 [2d Dept 2016]; Brill v Queens Lbr. Co., 2013 US Dist LEXIS
44203,, [EDNY Mar. 27,2013, No. 10-CV- 1975 (MKB)] [“Under New York Vehicle and
Traffic Law, whether or not a forklift qualifies as a motor vehicle depends on whether it
was principally designed for use off public roads”]; Zollinger v Owens-Brockway Glass
Container, Inc., 233 F Supp 2d 349, 356 [NDNY 2002][seat belt defense under VTL §
1229-c inapplicable as the forklift at issue was not operated or driven upon a public
highway]; Mangra v China Airlines, Ltd., 790 NYS 2d 370 [NY Civ Ct 2005][vicarious
liability under VTL § 388 did not apply to airline who owned forklift involved in accident
as the forklift at issue was used in the warehouse and not on a public road]).
16. A forklift has been accepted as a “motor vehicle” for other purposes (see Nunez v Olympic
Fence & Railing Co., Inc., 138 AD3d 807, 808 [2d Dept 2016][triable issues of fact as to
whether a forklift operator exiting a driveway onto a street exercised due care pursuant
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to VTL §§ 1143, 1146[a] and 1173 as he failed to observe a bicyclist proceeding in the
wrong direction down the street].
17. In Jebode v Golden Oldies, Ltd., 26 Misc 3d 1237[A], [Sup Ct, Queens County 2010][ a
forklift was deemed a “motor vehicle” under VTL § 125 for purposes of Insurance Law §
5102[d] as it was regularly used to load and unload trucks on a public street and was not
solely confined to the defendant's building.
18. In Jebode, the defendant's forklift rolled from its garage and struck the rear of plaintiff's
parked minivan on a public street. The Court’s analysis determined that the forklift was a
motor vehicle. The court in Jebode noted that in another case, a “bobcat” which is a
“machine used for plowing snow or in connection with landscaping work”, met the
definition of a motor vehicle under New York law when “at the time of the accident the
motor was running, and he was moving the machine on the sidewalk' “ when it struck a car
where plaintiff was a passenger (Matter of County of Westchester v. Winstead, 231 A.D.2d
630).
19. The court further noted that in the Civil Court case of Mangra v. China Airlines, Ltd,
Misc.3d 499 (which is relied upon by movant), a forklift was found not to be a “motor
vehicle” when the underlying accident occurred within the defendant's cargo building. Yet,
the Court in Jebode distinguished the Mangra case and held that the forklift was a motor
vehicle because the forklift in question was regularly used to load and unload trucks on a
public street and was not solely confined to the defendant's building. Whether or not the
forklift was registered with the Department of Motor Vehicles was not the determinative
factor.
20. In the case at bar, the forklift allegedly struck the plaintiff’s vehicle on a public street which
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was directly in front of the ‘job site’. There has been no meaningful discovery such as
depositions to determine the use of the forklift at the ‘job site’ or what area was included
in the ‘job site’. The alleged terms and conditions relating to the forklift are unclear as to
the meaning and scope of the ‘job site’. Does the work site include the public street directly
in front of the ‘job site’? Was it the custom and practice at the worksite to operate the
forklift on a public street? Such facts can only be obtained through depositions and are
determinative in this matter.
IV. IF THE FORKLIFT IS A MOTOR VEHICLE, THEN THE MOVANT WOULD
FACE VICARIOUS LIABILITY UNDER VTL 388 AS IT WOULD NOT
QUALIFY FOR THE PROTECTIONS OF THE ‘GRAVES AMENDMENT’.
21. The Graves Amendment 49 U.S.C.A. § 30106 states:
“(a) In general.--An owner of a motor vehicle that rents or leases the vehicle to a person
(or an affiliate of the owner) shall not be liable under the law of any State or political
subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the
owner), for harm to persons or property that results or arises out of the use, operation, or
possession of the vehicle during the period of the rental or lease, if--
(1) the owner (or an affiliate of 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 (or an
affiliate of the owner).” (Emphasis added)
22. As per the statute, the movant would not be subject to the Graves Amendment, because it
was and is not engaged in “the trade or business of renting or leasing motor vehicles.”
Rather, the movant is in the business of renting or leasing equipment, such as boom lifts,
forklifts, and other mechanized equipment.
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23. The movant itself confirms that it is not in business of renting or leasing motor vehicles.
The affidavit of Sean Derencin states that the movant is “an equipment rental company”,
(See Exhibit B, Paragraph 1)
24. The affidavit of John Barbato states that the movant is “an equipment rental company”.
John Barabato further states that the movant. “is a national equipment rental company
engaged in the trade or business of renting or leasing a variety of machines, including boom
lifts, forklifts, and other mechanized equipment.”, (See Exhibit C, Paragraph 1 and 2).
The affidavit of Jospeh Pennachio states the same thing, (See Exhibit A Paragraph 2).
25. Furthermore, the movant’s web site described itself as “the premier rental equipment
company in North America, Sunbelt Rentals offers a highly diversified product mix
including general construction equipment, industrial tools, pumps, power generation,
climate control & HVAC, shoring solutions, scaffolding, remediation & restoration
equipment, and more” (See Exhibit 1). There is no mention of being engaged in the
business of renting or leasing motor vehicles, simply because the movant was and is not
engaged in that business.
26. The Second Department in Edwards v. J&D Express Service Corp 180 A.D.3d 871 (2020)
affirmed a denial of summary judgment pursuant to the Graves Amendment when there
were issues of fact as to whether the movant was a bona fide lessor of motor vehicles. See
also Davido v. Salazar 89 A.D.3d 463 (1st Dept. 2011)
27. In the case at bar, there is an issue of fact, based on the movant’s own admissions and
website (Exhibit 1) as to if it is a bona fide lessor of motor vehicles. As such, it is even
more imperative to have full discovery to determine if the forklift in this case is a motor
vehicle. Since, as noted above, if the forklift is a motor vehicle and the movant is not in the
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business of renting or leasing motor vehicles then the Graves Amendment would not apply
thereby placing vicarious liability on the movant pursuant to VTL 388.
28. In light of the foregoing, it is respectfully submitted that the instant motion should be
denied in its entirety as a matter of law.
WHEREFORE, Defendant PEREZ JAVIER and Defendant/Second Third Party Defendant
QUALITY FACILITY SOLUTIONS CORP respectfully request that the instant motion be denied
in all respects together with such relief as this Honorable Court finds to be necessary and proper.
Dated: New York, New York
December 15, 2021
William Cohen
William Cohen, Esq.
MOLOD SPITZ & DeSANTIS, P.C.
Attorneys for Defendants
PEREZ JAVIER and
QUALITY FACILITY SOLUTIONS CORP.
1430 Broadway, 21st Floor
New York, NY 10018
Tel: (212) 869-3200
Fax: (212) 869-4242
File No.: CMI 627
Email: wcohen@molodspitz.com
TO:
Stephen Liakas, Esq.
LIAKAS LAW, P.C.
Attorney for Plaintiff
65 Broadway, 13th Floor
New York, NY 10006
Email:SL@liakaslaw.com
Carol Notias Kotsinis, Esq.
SCHNADER HARRISON SEGAL
& LEWIS, LLP.
Attorneys for Defendant/Third Party Plaintiff
SUNBELT RENTALS, INC.,
140 Broadway, Suite 3100
New York, NY 10005
Email: ckotsinis@schnader.com
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BROOKLYN GC, LLC.
C/O Yoel Schwimmer
694 Myrtle Avenue, #408
Brooklyn, NY 11205
Email: 6136ys@gmail.com
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CERTIFICATION
I hereby certify pursuant to Rule 202.8-b that the foregoing Affirmation in
Opposition was prepared on a computer using Microsoft Word.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 12
Line spacing: Double
Word Count. The total number of words in this Affirmation in Opposition, inclusive
of point headings and exclusive of pages containing the caption, signature block, and
proof of service and this Statement is 2346.
Dated: New York, New York
December 15, 2021
Respectfully submitted,
Yours etc.,
William Cohen, Esq.
Molod Spitz & DeSantis, P.C.
1430 Broadway, 21st Floor
New York, New York 10018
(212) 869-3200
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Preview
FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X DARIO ROSARIO, Index No.: 516285/2019 Plaintiff, AFFIRMATION IN OPPOSITION -against- SUNBELT RENTALS, INC., PEREZ JAVIER, and BROOKLYN GC, QUALITY FACILITY SOLUTIONS CORP., Defendants -----------------------------------------------------------------------X SUNBELT RENTALS, INC., Third-Party Plaintiff, -against- BROOKLYN GC LLC, Third-Party Defendant, ------------------------------------------------------------------------X BROOKLYN GC LLC, Second Third-Party Plaintiff, -against- QUALITY FACILITY SOLUTIONS CORP., Second Third-Party Defendant. ------------------------------------------------------------------------X WILLIAM COHEN, ESQ., an attorney admitted to practice law before the various Courts of the State of New York, hereby affirms under penalty of perjury that the following, except that which is asserted upon information and belief, affirmant, based on office and client records, believes to be true. 1. I am an attorney with MOLOD SPITZ & DeSANTIS, P.C., attorneys of record for Defendant PEREZ JAVIER and Defendant/Second Third-Party Defendant QUALITY 1 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 FACILITY SOLUTIONS CORP., in the instant matter and am fully familiar with the facts and circumstances herein. 2. This Affirmation is being submitted in opposition to the motion brought on behalf of Defendant/ Third-Party Plaintiff SUNBELT RENTALS, INC pursuant to CPLR 3211(a)(7) and CPLR 3212. 3. As will be shown below, the motion must be denied as the movant has failed to establish with admissible evidence its entitlement to summary judgment. Additionally, the motion is premature as there are specific threshold issues of law and fact that can only be addressed with further discovery including depositions. I. PRELIMINARILY, THE BASIS FOR THE MOTION TO DISMISS PURSUANT TO CPLR 3211(a)(7) IS IMPROPER. 4. The basis for the motion to dismiss is not proper. The complaint clearly states a cause of action. The use of documentation for a motion to dismiss is to be used on the grounds of CPLR 3211(a)(1) documentary evidence, which has already been waived. “ On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, 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 ” (Shah v. Exxis, Inc., 138 A.D.3d 970, 971,; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858,; Leon v. Martinez, 84 N.Y.2d at 87–88,). The court's function is to "accept … each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts'" 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509, [1979]). The pleading is to be liberally construed and 2 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 the pleader afforded the benefit of every possible favorable inference (511 West 232nd Owners Corp., supra). II. THE MOVANT FAILED TO ESTABLISH A PRIMA FACIE SHOWING FOR SUMMARY JUDGMENT 5. To establish prima facie entitlement to judgment as a matter of law, a movant for summary judgment must come forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, [1986]; Zuckerman v City of New York, 49 NY2d 557). The failure to make such showing requires the denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, [1985]; McDonald v Mauss, 38 AD3d 727, [2007]). 6. As will be shown below, the movant failed to provide evidentiary proof to establish prima facie entitlement to summary judgment. A. THE MOVANT’S SUPPORTING DOCUMENTS ARE INADMISSIBALE PURSUANT TO THE BUSINESS RECORD RULE OF CPLR 4518(A) 7. Itis the business record itself, not the foundational affidavit, that serves as proof of the matter asserted. U.S. Bank Trust, N.A. v. Vanterpool, 189 A.D.3d 1516 (2d Dep't 2020). 8. According to CPLR 4518 (a): “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” 3 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 9. In this case, none of the movant’s supporting affidavits lay the proper foundation for the supporting documents, pursuant to CPLR 4518(a). There is no mention in any of the affidavits of the documents being made in the regular course of business and that it was in the regular course of business to make it. 10. The affidavit of Sean Derencin, (Movant Exhibit B), includes copies of delivery tickets of the subject forklift. There is no mention in the affidavit of the delivery tickets being made in the regular course of business and that it was in the regular course of business to make it. As such, those documents are inadmissible as hearsay. 11. The affidavit of Jospeh Pennachio, (Movant Exhibit A), includes a copy of the alleged Credit and Rental Agreement between movant and co-defendant Brooklyn GC LLC, a copy of terms and agreements of such agreement obtained from a website, a copy of the alleged contract between movant and co-defendant Brooklyn GC LLC, as well as another copy of the terms and conditions. Again, there is no mention in the affidavit of these documents being made in the regular course of business and that it was in the regular course of business to make them. As such, those documents are inadmissible as hearsay. 12. The affidavit of John Barbato, (Movant Exhibit C) includes copies of inspection reports maintenance records, and pickup tickets relating to the subject forklift. There is no mention in the affidavit of these documents being made in the regular course of business and that it was in the regular course of business to make them. As such, those documents are also inadmissible as hearsay. 13. In this case, the documents have not been properly authenticated. The proper foundation was not met in the affidavits. As such, the documents are inadmissible and can not be used for proof in support of the motion. Since the documents are not admissible, the movant can 4 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 not establish its prima facie entitlement to summary judgment. III. THE MOTION MUST BE DENIED AS PREMATURE AS DISCOVERY IS NEEDED TO DETERMINE WHETHER THE FORKLIFT IS A MOTOR VEHICLE PURSUANT TO THE VEHICLE AND TRAFFIC LAW 14. The Vehicle and Traffic Law applies to the use of a motor vehicle on public highways (VTL § 300). A “motor vehicle” is defined by VTL § 125 as “[e]very vehicle operated or driven upon a public highway which is propelled by any power other than muscular power.” The statute excludes vehicles such as vehicles running on rails or tracks, snowmobiles, all-terrain vehicles, and others, none of which include a forklift. 15. The determination as to the status of the forklift turns on the issue of whether it was “operated or driven upon a public highway” (see Nunez v Olympic Fence & Railing Co., Inc., 138 AD3d 807, 808 [2d Dept 2016]; Brill v Queens Lbr. Co., 2013 US Dist LEXIS 44203,, [EDNY Mar. 27,2013, No. 10-CV- 1975 (MKB)] [“Under New York Vehicle and Traffic Law, whether or not a forklift qualifies as a motor vehicle depends on whether it was principally designed for use off public roads”]; Zollinger v Owens-Brockway Glass Container, Inc., 233 F Supp 2d 349, 356 [NDNY 2002][seat belt defense under VTL § 1229-c inapplicable as the forklift at issue was not operated or driven upon a public highway]; Mangra v China Airlines, Ltd., 790 NYS 2d 370 [NY Civ Ct 2005][vicarious liability under VTL § 388 did not apply to airline who owned forklift involved in accident as the forklift at issue was used in the warehouse and not on a public road]). 16. A forklift has been accepted as a “motor vehicle” for other purposes (see Nunez v Olympic Fence & Railing Co., Inc., 138 AD3d 807, 808 [2d Dept 2016][triable issues of fact as to whether a forklift operator exiting a driveway onto a street exercised due care pursuant 5 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 to VTL §§ 1143, 1146[a] and 1173 as he failed to observe a bicyclist proceeding in the wrong direction down the street]. 17. In Jebode v Golden Oldies, Ltd., 26 Misc 3d 1237[A], [Sup Ct, Queens County 2010][ a forklift was deemed a “motor vehicle” under VTL § 125 for purposes of Insurance Law § 5102[d] as it was regularly used to load and unload trucks on a public street and was not solely confined to the defendant's building. 18. In Jebode, the defendant's forklift rolled from its garage and struck the rear of plaintiff's parked minivan on a public street. The Court’s analysis determined that the forklift was a motor vehicle. The court in Jebode noted that in another case, a “bobcat” which is a “machine used for plowing snow or in connection with landscaping work”, met the definition of a motor vehicle under New York law when “at the time of the accident the motor was running, and he was moving the machine on the sidewalk' “ when it struck a car where plaintiff was a passenger (Matter of County of Westchester v. Winstead, 231 A.D.2d 630). 19. The court further noted that in the Civil Court case of Mangra v. China Airlines, Ltd, Misc.3d 499 (which is relied upon by movant), a forklift was found not to be a “motor vehicle” when the underlying accident occurred within the defendant's cargo building. Yet, the Court in Jebode distinguished the Mangra case and held that the forklift was a motor vehicle because the forklift in question was regularly used to load and unload trucks on a public street and was not solely confined to the defendant's building. Whether or not the forklift was registered with the Department of Motor Vehicles was not the determinative factor. 20. In the case at bar, the forklift allegedly struck the plaintiff’s vehicle on a public street which 6 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 was directly in front of the ‘job site’. There has been no meaningful discovery such as depositions to determine the use of the forklift at the ‘job site’ or what area was included in the ‘job site’. The alleged terms and conditions relating to the forklift are unclear as to the meaning and scope of the ‘job site’. Does the work site include the public street directly in front of the ‘job site’? Was it the custom and practice at the worksite to operate the forklift on a public street? Such facts can only be obtained through depositions and are determinative in this matter. IV. IF THE FORKLIFT IS A MOTOR VEHICLE, THEN THE MOVANT WOULD FACE VICARIOUS LIABILITY UNDER VTL 388 AS IT WOULD NOT QUALIFY FOR THE PROTECTIONS OF THE ‘GRAVES AMENDMENT’. 21. The Graves Amendment 49 U.S.C.A. § 30106 states: “(a) In general.--An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if-- (1) the owner (or an affiliate of 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 (or an affiliate of the owner).” (Emphasis added) 22. As per the statute, the movant would not be subject to the Graves Amendment, because it was and is not engaged in “the trade or business of renting or leasing motor vehicles.” Rather, the movant is in the business of renting or leasing equipment, such as boom lifts, forklifts, and other mechanized equipment. 7 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 23. The movant itself confirms that it is not in business of renting or leasing motor vehicles. The affidavit of Sean Derencin states that the movant is “an equipment rental company”, (See Exhibit B, Paragraph 1) 24. The affidavit of John Barbato states that the movant is “an equipment rental company”. John Barabato further states that the movant. “is a national equipment rental company engaged in the trade or business of renting or leasing a variety of machines, including boom lifts, forklifts, and other mechanized equipment.”, (See Exhibit C, Paragraph 1 and 2). The affidavit of Jospeh Pennachio states the same thing, (See Exhibit A Paragraph 2). 25. Furthermore, the movant’s web site described itself as “the premier rental equipment company in North America, Sunbelt Rentals offers a highly diversified product mix including general construction equipment, industrial tools, pumps, power generation, climate control & HVAC, shoring solutions, scaffolding, remediation & restoration equipment, and more” (See Exhibit 1). There is no mention of being engaged in the business of renting or leasing motor vehicles, simply because the movant was and is not engaged in that business. 26. The Second Department in Edwards v. J&D Express Service Corp 180 A.D.3d 871 (2020) affirmed a denial of summary judgment pursuant to the Graves Amendment when there were issues of fact as to whether the movant was a bona fide lessor of motor vehicles. See also Davido v. Salazar 89 A.D.3d 463 (1st Dept. 2011) 27. In the case at bar, there is an issue of fact, based on the movant’s own admissions and website (Exhibit 1) as to if it is a bona fide lessor of motor vehicles. As such, it is even more imperative to have full discovery to determine if the forklift in this case is a motor vehicle. Since, as noted above, if the forklift is a motor vehicle and the movant is not in the 8 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 business of renting or leasing motor vehicles then the Graves Amendment would not apply thereby placing vicarious liability on the movant pursuant to VTL 388. 28. In light of the foregoing, it is respectfully submitted that the instant motion should be denied in its entirety as a matter of law. WHEREFORE, Defendant PEREZ JAVIER and Defendant/Second Third Party Defendant QUALITY FACILITY SOLUTIONS CORP respectfully request that the instant motion be denied in all respects together with such relief as this Honorable Court finds to be necessary and proper. Dated: New York, New York December 15, 2021 William Cohen William Cohen, Esq. MOLOD SPITZ & DeSANTIS, P.C. Attorneys for Defendants PEREZ JAVIER and QUALITY FACILITY SOLUTIONS CORP. 1430 Broadway, 21st Floor New York, NY 10018 Tel: (212) 869-3200 Fax: (212) 869-4242 File No.: CMI 627 Email: wcohen@molodspitz.com TO: Stephen Liakas, Esq. LIAKAS LAW, P.C. Attorney for Plaintiff 65 Broadway, 13th Floor New York, NY 10006 Email:SL@liakaslaw.com Carol Notias Kotsinis, Esq. SCHNADER HARRISON SEGAL & LEWIS, LLP. Attorneys for Defendant/Third Party Plaintiff SUNBELT RENTALS, INC., 140 Broadway, Suite 3100 New York, NY 10005 Email: ckotsinis@schnader.com 9 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 BROOKLYN GC, LLC. C/O Yoel Schwimmer 694 Myrtle Avenue, #408 Brooklyn, NY 11205 Email: 6136ys@gmail.com 10 of 11 FILED: KINGS COUNTY CLERK 12/15/2021 10:24 AM INDEX NO. 516285/2019 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 12/15/2021 CERTIFICATION I hereby certify pursuant to Rule 202.8-b that the foregoing Affirmation in Opposition was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 12 Line spacing: Double Word Count. The total number of words in this Affirmation in Opposition, inclusive of point headings and exclusive of pages containing the caption, signature block, and proof of service and this Statement is 2346. Dated: New York, New York December 15, 2021 Respectfully submitted, Yours etc., William Cohen, Esq. Molod Spitz & DeSantis, P.C. 1430 Broadway, 21st Floor New York, New York 10018 (212) 869-3200 11 of 11