Preview
FILED: SUFFOLK COUNTY CLERK 08/23/2023 01:09 PM INDEX NO. 601443/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/24/2023
STATE OF NEW YORK
SUPREME COURT: COUNTY OF SUFFOLK
_____________________________________________
RYAN THODEN,
Plaintiff, AFFIRMATION
v. Index No.: 601443/2023
HUB TRUCK RENTAL CORP.,
K&B QUALITY SERVICES INC.,
and R.M. PARADAZELYA,
Defendants.
_____________________________________________
I, Megan F. Organek, Esq., an attorney duly licensed to practice law in the State of New
York, affirm the following under the penalties of perjury:
1. I am a partner with the law firm of Hagelin Spencer LLC, attorneys for the
Defendants HUB TRUCK RENTAL CORP., K&B QUALITY SERVICES INC., and R.M.
PARADAZELYA. I am fully familiar with the facts and circumstances set forth herein.
2. I submit this Affirmation in support of the motion of Defendant HUB Truck
Rental Corp. (hereinafter “HUB Truck Rental”) seeking to dismiss the Plaintiff’s Complaint
against HUB Truck Rental pursuant to CPLR §§ 3211(a)(7), 3212, and 49 U.S.C.A. § 30106
(“Graves Amendment”).
3. This lawsuit arises out of an accident which occurred on December 23, 2022 on
Rosedale Avenue near its intersection with Millers Court in Brookhaven, New York. Plaintiff
commenced suit with the filing of a Summons and Complaint in the Suffolk County Clerk’s
Office on or about January 18, 2023. The Defendants served their Answer on or about March 16,
2023. Copies of the aforementioned pleadings are attached under Exhibit A.
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4. Upon information and belief, the Plaintiff’s cause of action against HUB Truck
Rental is based on vicarious liability pursuant to New York Vehicle and Traffic Law § 388, which
imposes vicarious liability on the owner of a vehicle for the negligence of a permissive user of
that vehicle. Upon information and belief, the Plaintiff does not assert that HUB Truck Rental
negligently caused the accident or committed any criminal wrongdoing that would remove the
protection of the Graves Amendment.
5. Vehicle and Traffic Law § 388, along with similar laws in other jurisdictions, no
longer applies to vehicle lessors, as the federal statute known colloquially as the Graves
Amendment preempts any vicarious liability imposed against lessors under Vehicle and Traffic
Law § 388. Under the Graves Amendment:
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 the owner
of the vehicle, 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 . . . the owner (or an affiliate of the
owner) is engaged in the trade or business of renting or leasing
motor vehicles; and . . . there is no negligence or criminal
wrongdoing on the part of the owner (or an affiliate of the owner).
49 U.S.C.A. § 30106.
7. If a plaintiff brings a cause of action against a lessor based on vicarious liability
under Vehicle and Traffic Law § 388, this cause of action must be dismissed for failure to state a
cause of action as a result of the preemption of Vehicle and Traffic Law § 388 by the Graves
Amendment. Graham v. Dunkley, 50 A.D.3d 55 (2d Dep’t 2008). See also Hernandez v. Sanchez,
40 A.D.3d 446 (1st Dep’t 2007).
8. If there is sufficient evidence – such as the lease agreement for the subject motor
vehicle or a statement by an agent that the defendant lessor has been in the business of renting or
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leasing – that demonstrates that the defendant lessor was in the business of renting or leasing, the
defendant lessor falls within the protective ambit of the Graves Amendment and the plaintiff’s
cause of action against the defendant lessor must be dismissed. Luperon v. North Jersey Truck
Center, Inc., 2009 U.S. Dist. LEXIS 52164 (S.D.N.Y. 2009).
9. The Southern District of New York addressed the term “in the business of renting
or leasing” in Luperon v. North Jersey Truck Center, Inc. In Luperon, the plaintiff was involved in
an accident with a Freightliner Truck. The plaintiff commenced an action against defendants North
Jersey Truck Center (“NJTC”) and Moretran Leasing Corporation (“MLC”) alleging that they were
the owners of the Freightliner. The evidence demonstrated that prior to the accident, the defendants
had leased the vehicle to third-party defendant, Smartway. The evidence also demonstrated that
while MLC had at one time been involved in the business of leasing vehicles, it had transitioned
into the business of providing financing for the sale of vehicles by the time of the accident.
Nevertheless, the Southern District held that the Graves Amendment still shielded MLC from
liability. In doing so, the Southern District held that the defendants were in the business of leasing
withing the meaning of the Graves Amendment.
10. In this case, HUB Truck Rental was the owner of the motor vehicle that was leased
to Defendant K&B Quality Services and is engaged in the trade or business of leasing motor
vehicles. Attached as Exhibit B is an Affidavit from the insurance supervisor of HUB Truck Rental
that outlines HUB’s limited connection to the subject vehicle.
11. On April 18, 2013, a motor vehicle lease agreement was signed between HUB
Truck Rental and K&B Quality Services Inc. Under the lease agreement, HUB Truck Rental
authorized K&B Quality Services Inc. as assignee of the lease to collect and discharge the
obligation of the lease. As a result, the only possible relationship between HUB Truck Rental and
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K&B Services is one of lessor-lessee. A copy of the lease agreement is attached hereto under
Exhibit C.
12. Furthermore, on the date of the accident, Defendant R.M. Paradazelya was not an
agent, servant, or employee of HUB Truck Rental. As such, he was not acting in their authorization,
express or implied. No relationship existed between HUB Truck Rental and Defendant R.M.
Paradazelya.
13. Since HUB Truck Rental merely leased the subject vehicle to K&B Quality
Services Inc. and R.M Paradazelya was not an agent of HUB Truck Rental, HUB Truck Rental
must be afforded the protection of the Graves Amendment which preempts vicarious liability under
Vehicle and Traffic Law § 388 with respect to lessors. Based on the preemption of the Graves
Amendment, the Plaintiff has failed to assert a cause of action against HUB Truck Rental and it
cannot be held vicariously liable under Vehicle and Traffic law § 388 for the alleged negligence of
Defendant R.M. Paradazelya.
WHEREFORE, your affirmant respectfully requests that this Court dismiss the Complaint
against Defendant HUB Truck Rental Corp., together with such other and further relief which the
Court may deem just and proper.
Dated: August 23, 2023
Buffalo, New York
_____________________________
Megan F. Organek, Esq.
HAGELIN SPENCER LLC
Attorneys for Defendants
135 Delaware Avenue, Suite 200
Buffalo, New York 14202
(716) 849-3500
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Preview
FILED: SUFFOLK COUNTY CLERK 08/23/2023 01:09 PM INDEX NO. 601443/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/24/2023 STATE OF NEW YORK SUPREME COURT: COUNTY OF SUFFOLK _____________________________________________ RYAN THODEN, Plaintiff, AFFIRMATION v. Index No.: 601443/2023 HUB TRUCK RENTAL CORP., K&B QUALITY SERVICES INC., and R.M. PARADAZELYA, Defendants. _____________________________________________ I, Megan F. Organek, Esq., an attorney duly licensed to practice law in the State of New York, affirm the following under the penalties of perjury: 1. I am a partner with the law firm of Hagelin Spencer LLC, attorneys for the Defendants HUB TRUCK RENTAL CORP., K&B QUALITY SERVICES INC., and R.M. PARADAZELYA. I am fully familiar with the facts and circumstances set forth herein. 2. I submit this Affirmation in support of the motion of Defendant HUB Truck Rental Corp. (hereinafter “HUB Truck Rental”) seeking to dismiss the Plaintiff’s Complaint against HUB Truck Rental pursuant to CPLR §§ 3211(a)(7), 3212, and 49 U.S.C.A. § 30106 (“Graves Amendment”). 3. This lawsuit arises out of an accident which occurred on December 23, 2022 on Rosedale Avenue near its intersection with Millers Court in Brookhaven, New York. Plaintiff commenced suit with the filing of a Summons and Complaint in the Suffolk County Clerk’s Office on or about January 18, 2023. The Defendants served their Answer on or about March 16, 2023. Copies of the aforementioned pleadings are attached under Exhibit A. 1 of 4 FILED: SUFFOLK COUNTY CLERK 08/23/2023 01:09 PM INDEX NO. 601443/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/24/2023 4. Upon information and belief, the Plaintiff’s cause of action against HUB Truck Rental is based on vicarious liability pursuant to New York Vehicle and Traffic Law § 388, which imposes vicarious liability on the owner of a vehicle for the negligence of a permissive user of that vehicle. Upon information and belief, the Plaintiff does not assert that HUB Truck Rental negligently caused the accident or committed any criminal wrongdoing that would remove the protection of the Graves Amendment. 5. Vehicle and Traffic Law § 388, along with similar laws in other jurisdictions, no longer applies to vehicle lessors, as the federal statute known colloquially as the Graves Amendment preempts any vicarious liability imposed against lessors under Vehicle and Traffic Law § 388. Under the Graves Amendment: 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 the owner of the vehicle, 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 . . . the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and . . . there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). 49 U.S.C.A. § 30106. 7. If a plaintiff brings a cause of action against a lessor based on vicarious liability under Vehicle and Traffic Law § 388, this cause of action must be dismissed for failure to state a cause of action as a result of the preemption of Vehicle and Traffic Law § 388 by the Graves Amendment. Graham v. Dunkley, 50 A.D.3d 55 (2d Dep’t 2008). See also Hernandez v. Sanchez, 40 A.D.3d 446 (1st Dep’t 2007). 8. If there is sufficient evidence – such as the lease agreement for the subject motor vehicle or a statement by an agent that the defendant lessor has been in the business of renting or 2 of 4 FILED: SUFFOLK COUNTY CLERK 08/23/2023 01:09 PM INDEX NO. 601443/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/24/2023 leasing – that demonstrates that the defendant lessor was in the business of renting or leasing, the defendant lessor falls within the protective ambit of the Graves Amendment and the plaintiff’s cause of action against the defendant lessor must be dismissed. Luperon v. North Jersey Truck Center, Inc., 2009 U.S. Dist. LEXIS 52164 (S.D.N.Y. 2009). 9. The Southern District of New York addressed the term “in the business of renting or leasing” in Luperon v. North Jersey Truck Center, Inc. In Luperon, the plaintiff was involved in an accident with a Freightliner Truck. The plaintiff commenced an action against defendants North Jersey Truck Center (“NJTC”) and Moretran Leasing Corporation (“MLC”) alleging that they were the owners of the Freightliner. The evidence demonstrated that prior to the accident, the defendants had leased the vehicle to third-party defendant, Smartway. The evidence also demonstrated that while MLC had at one time been involved in the business of leasing vehicles, it had transitioned into the business of providing financing for the sale of vehicles by the time of the accident. Nevertheless, the Southern District held that the Graves Amendment still shielded MLC from liability. In doing so, the Southern District held that the defendants were in the business of leasing withing the meaning of the Graves Amendment. 10. In this case, HUB Truck Rental was the owner of the motor vehicle that was leased to Defendant K&B Quality Services and is engaged in the trade or business of leasing motor vehicles. Attached as Exhibit B is an Affidavit from the insurance supervisor of HUB Truck Rental that outlines HUB’s limited connection to the subject vehicle. 11. On April 18, 2013, a motor vehicle lease agreement was signed between HUB Truck Rental and K&B Quality Services Inc. Under the lease agreement, HUB Truck Rental authorized K&B Quality Services Inc. as assignee of the lease to collect and discharge the obligation of the lease. As a result, the only possible relationship between HUB Truck Rental and 3 of 4 FILED: SUFFOLK COUNTY CLERK 08/23/2023 01:09 PM INDEX NO. 601443/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/24/2023 K&B Services is one of lessor-lessee. A copy of the lease agreement is attached hereto under Exhibit C. 12. Furthermore, on the date of the accident, Defendant R.M. Paradazelya was not an agent, servant, or employee of HUB Truck Rental. As such, he was not acting in their authorization, express or implied. No relationship existed between HUB Truck Rental and Defendant R.M. Paradazelya. 13. Since HUB Truck Rental merely leased the subject vehicle to K&B Quality Services Inc. and R.M Paradazelya was not an agent of HUB Truck Rental, HUB Truck Rental must be afforded the protection of the Graves Amendment which preempts vicarious liability under Vehicle and Traffic Law § 388 with respect to lessors. Based on the preemption of the Graves Amendment, the Plaintiff has failed to assert a cause of action against HUB Truck Rental and it cannot be held vicariously liable under Vehicle and Traffic law § 388 for the alleged negligence of Defendant R.M. Paradazelya. WHEREFORE, your affirmant respectfully requests that this Court dismiss the Complaint against Defendant HUB Truck Rental Corp., together with such other and further relief which the Court may deem just and proper. Dated: August 23, 2023 Buffalo, New York _____________________________ Megan F. Organek, Esq. HAGELIN SPENCER LLC Attorneys for Defendants 135 Delaware Avenue, Suite 200 Buffalo, New York 14202 (716) 849-3500 4 of 4