Preview
FILED: NASSAU COUNTY CLERK 1170272023 12:10 PM INDEX NO. 610127/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 10/27/2023
SUPREME COURT - STATE OF NEW YORK
PRESENT:
Honorable James P. McCormack
Justice
TRIAL/IAS, PART 8
NASSAU COUNTY
LESLY SAINTILLE and KIMBERLIE
DESMANGLES,
Index No.: 610127/23
Plaintiff,
Motion Seq. No.: 01
-against- Motion Submitted: 9/12/23
CESAR ANTONIO OSORIO CERRATO,
ROBENSEN CELESTIN, NILT INC.
TRUSTEE and MADELL CELESTIN,
Defendant(s).
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The following papers read on this motion:
Notice of Motion/A ffirmation in Support/Supporting Exhibits.
Defendant, NILT, Inc. Trustee (NILT), moves this court, pursuant to CPLR
§3211(a)(7), for an order dismissing the complaint. Neither Plaintiffs, Lesly Saintille and
Kimberlie Desmangles, nor Co-Defendants, Cesar Antonio Osorio Cerrato, Robensen
Celestin (Robensen) and Madell Celestin (Madell), oppose the motion.
This matter involves a car accident that took place at or near the intersection of
Jerusalem Ave and Rutland Avenue, Uniondale, County of Nassau. At the time of the
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accident, Robenson was driving a that Madell leased from NILT.
Plaintiffs commenced this action by service of a summons and complaint dated
June 26, 2023. NILT bright this motion in lieu of an answer.
NILT moves to dismiss the complaint against it, arguing that pursuant to 49 USC
30106, also referred to as the Graves Amendment, it cannot be held liable for Plaintiffs’
injuries based on the fact that it was solely the lessor of Madell’s vehicle.
On a motion to dismiss for failure to state a cause of action pursuant to CPLR
§3211 (a) (7), “the sole criterion 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 for dismissal will fail” (Guggenheimer v
Ginzburg, 43 NY2d 268, 275 [1977]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994];
Hense v Baxter, 79 AD3d 814, 815 [2d Dept 2010]; Sokol v Leader, 74 AD3d 1180,
1180-1181 [2d Dept. 2010]). “The complaint must be construed liberally, the factual
allegations deemed to be true, and the nonmoving party granted the benefit of every
possible favorable inference” (Hense v Baxter, 79 AD3d 814, 815 [2d Dept 2010], supra;
see Leon v Martinez, 84 NY2d 83, 87 [1994], supra; Sokol v Leader, 74 AD3d 1180,1181
[2d Dept 2010], supra; Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d
Dept 2008]).
In reviewing a motion to dismiss for failure to state a cause of action pursuant to
CPLR § 3211(a)(7), the court is to accept all facts alleged in the complaint as being true,
accord plaintiff the benefit of every possible favorable inference, and determine only
whether the alleged facts fit within any cognizable legal theory (see Delbene v. Estes, 52
AD3d 647 [2d Dept. 2008]; see also 511 W.232nd Owners Corp. v. Jennifer Realty Co.,
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98 NY2D 144 [2002]. Pursuant to CPLR § 3026, the complaint is to be liberally
construed (see Leon v. Martinez, 84 NY2d at 83). It is not the court’s function to
determine whether plaintiff will ultimately be successful in proving the allegations (see
Aberbach y. Biomedical Tissue Services, 48 AD3d 716 [2d Dept 2008]; see also EBC I,
Inc. v. Goldman Sachs & Co., 5 NY3D 11 [2005}).
The pleaded facts, and any submissions in opposition to the motion, are accepted
as true and given every favorable inference (see 511 W. 323nd Owners Corp. v. Jennifer
Realty Co., 98 NY2d at 151-152; Dana v. Malco Realty, Inc., 51 AD3d 621 [2d Dept
2008]; Gershon y. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). However, a court may
consider evidentiary material submitted by a defendant in support of a motion to dismiss a
complaint pursuant to CPLR § 3211(a)(7) (see CPLR § 3211[c]; Sokol v. Leader, 74
AD3d at 1181). “When evidentiary material is considered” on a motion to dismiss a
complaint pursuant to CPLR § 3211(a)(7), the criterion is whether the plaintiff has a
cause of action, not whether they have properly stated one, and unless it has been shown
that a material fact as claimed is not a fact at all or that no significant dispute exists, the
dismissal should not be granted (Guggenheimer v. Ginzburg, 43 NY2d at 275; see Sokol
vy. Leader, 74 AD3d at 1182).
The Graves Amendment holds that an entity in the business of leasing or renting
vehicles cannot be held vicariously liable for an injury caused by such a vehicle, unless
the entity itself was negligent in some manner. 49 USCA 30106(a)(1) and (2).
In support of its motion, NILT submits, inter alia, an affidavit of Allison Edmond,
Supervisor for the Specialty Collections department of Nissan Motor Acceptance
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Company LLC, formerly known as NILT. According to Ms. Edmond, NILT entered into
a lease agreement with Madell on February 17, 2020, whereby Madell leased the subject
vehicle. The lease required Madell to assume responsibility for all aspects of maintaining
the vehicle. NILT does not repair, maintain, deliver, service, operate, manage, possess,
supervise, use, control, inspect, market or advertise vehicles. Paragraph 26 of the lease
states that Madell is responsible for the risk of loss and damage or destruction of the car.
Based upon Ms. Edmond’s affidavit, and the lease agreement, the Graves
Amendment applies to NILT.
In light of the foregoing, the complaint against NILT should be dismissed.
Accordingly, it is hereby
ORDERED, that NILT’s motion to dismiss the complaint against it, pursuant
CPLR §3211(a)(7) is GRANTED in its entirety. The complaint is dismissed against
EAN.
The foregoing constitutes the Decision and Order of the Court.
Dated: October 26, 2023
Mineola, N.Y.
Hon. Jagheg P. McCormac ASG.
ENTERED
Nov 02 2023
NASSAU COUNTY
COUNTY CLERK’S OFFICE
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