Motion,Ex Parte: Kai Williams v. Johnathan Benoit, Mercedes-Benz Of Rockville Centre, Fredrick L Weinstein, Nilt,Inc.

On July 30, 2019 a Motion,Ex Parte was filed involving a dispute between Kai Williams, and Fredrick L Weinstein, Johnathan Benoit, Mercedes-Benz Of Rockville Centre, Nilt,Inc., for Torts - Motor Vehicle in the District Court of New York County.

Preview
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

KAI WILLIAMS, Index No. 157403/2019

Plaintiff,

-against-

JOHNATHAN BENOIT, MERCEDES-BENZ OF
ROCKVILLE CENTRE, FREDRICK L. WEINSTEIN
and NILT,INC.,

Defendants.

-X

MEMORANDUM OF LAW IN SUPPORT OF
NILT. INC.’S MOTION TO DISMISS

OfCounsel:
Clifford B. Aaron

{N 1549223.2 }

1 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

PRELIMINARY STATEMENT

This Memorandum of Law with annexed exhibits, together with the Affidavit in

Support by Clifford B. Aaron, sworn to on October 17, 2019, and the exhibits annexed thereto, are

respectfully submitted in support of the instant motion by Defendant NILT, Inc.’s for an Order:

a. Pursuant to CPLR § 3211(a)(7), dismissing Plaintiffs Verified
Complaint and all cross-claims as against NILT, Inc., on the grounds
that the pleadings fail to state a cause of action upon which relief
may be granted;

b. Severing the dismissed action against NILT, Inc. from the remaining
action and directing the Clerk of Court to enter Judgment; and

c. Granting NILT, Inc. such other and further relief as this Court deems
just and proper.

The Verified Complaint as against NILT, Inc. should be dismissed on the grounds

that the enactment of 49 U.S.C. § 30106, commonly referred to as the “Graves Amendment,”

preempts New York Vehicle and Traffic Law (NYVTL) § 388, which imposed vicarious liability

upon an owner of a vehicle for the negligent acts of a permissive driver. The Graves Amendment

bars all state vicarious liability actions commenced on or after August 10, 2005 as against owners

of vehicles that are engaged in the business of renting or leasing motor vehicles. As such, the

Complaint fails to state a cause of action upon which relief may be granted as against NILT, Inc.,

a company engaged in the business of leasing motor vehicles. Moreover, Plaintiffs claim of

negligent maintenance similarly fail as a matter of law.

FACTS

The facts of this case are fully set forth in the Affidavit in Support. For the sake of

brevity, they will not be repeated herein except for purposes of amplification.

(N 1549223.2 }

2 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

ARGUMENT

POINT 1

NILT, INC. IS ENTITLED TO DISMISSAL OF PLAINTIFF’S
VERIFIED COMPLAINT BASED UPON THE GRAVES
AMENDMENT

It is well-established that a proponent of a Motion to Dismiss is entitled to have its

action dismissed upon demonstrating that a party’s complaint has failed to state a cause of action.

N.Y.C.P.L.R. § 3211(a)(7); see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17,

401 N.Y.S.2d 182 (1977). The only factor in determining whether an action should be dismissed

pursuant to CPLR § 3211(a)(7) is whether the complaint “states a cause of action, and if from [the

Complaint’s] four corners factual allegations are discerned which taken together manifest any

cause of action cognizable at law.” Guggenheimer, 43 N.Y.2d at 275, 372 N.E.2d at 20, 401

N.Y.S.2d at 185; see also Leon v. Martinez, 84 N.Y.2d 83, 88, 638 N.E.2d 511, 614 N.Y.S.2d 972

(1994); Foley v. D’Agostino, 21 A.D.2d 60, 64-65, 248 N.Y.S.2d 121 (1st Dep’t 1964).

In the instant matter, the factual allegations in the Verified Complaint make clear

that Plaintiffs theories of liability against NILT, Inc. sound in negligence, premised upon

vicarious liability pursuant to NYVTL § 388. The enactment of the Graves Amendment preempts

NYVTL § 388, and therefore. Plaintiffs Verified Complaint fails to state a cause of action upon

which relief may be granted as against NILT, Inc.

A. New York Vehicle and Traffic Law § 388

New York Vehicle and Traffic Law § 388 states, in relevant part, as follows:

§ 388. Negligence in use or operation of vehicle
attributable to owner.

1. 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.

{N 1549223.2 )

3 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

in the business of such owner or otherwise, by a person using or
operating the same with the permission, express or implied, of
such owner.
[NYVTL § 388.]

As applied to the instant matter, the effect of NYVTL § 388, is to impose vicarious

liability upon entities such as NILT, Inc., which retains title ownership of a leased vehicle, for the

negligent acts of the permissive user of that vehicle.

B. Transportation Equity Act - 49 U.S.C. § 30106 (“Graves Amendment”)

On August 10, 2005, the Transportation Equity Act was signed into law by

President George W. Bush. As part of the Transportation Equity Act, subchapter 301 of title 49

of the United States Code was amended by adding at the end thereof, in relevant part, the following

statute:

Rented or leased motor vehiele safety and responsibility.

(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).

(c) Applicability and effective date. - Notwithstanding any other
provision of law, this section shall apply with respect to any action
commenced on or after the date of enactment of this section without
regard to whether the harm that is the subject of the action, or the
conduct that caused the harm, occurred before such date of
enactment.
[49 U.S.C. § 30106.]

[N1549223.2 J

4 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

The Graves Amendment preempts NYVTL § 388, which imposed vicarious

liability upon leasing companies, such as NILT, Inc., for the negligent acts of a permissive driver.

The Graves Amendment bars all state vicarious liability actions commenced on or after August

10, 2005 as against owners of the vehicles that are engaged in the business or trade of renting or

leasing motor vehicles.

C. Appellate Courts and Various State Trial Courts Have Upheld the Graves Amendment

Pursuant to the Graves Amendment, automotive vicarious liability actions are

barred as against entities such as NILT, Inc., which are engaged in the business of leasing motor

vehicles. This principle has been consistently reaffirmed by Appellate Courts throughout the State

of New York, including the First Department. See Hall v. Elrac, Inc., 52 A.D.3d 262, 859 N. Y.S.2d

641 (1st Dep’t 2008); Hernandez v. Sanchez, et al, 40 A.D.3D 446, 836 N.Y.S.2d 577 (1st Dep’t

2007). See also Cukoviq v. NILT, et al., 169 A.D.3d 766 (2d Dep’t 2019); Aviaev v. Nissan Infmiti

LT, 150 A.D.3d 807 (2d Dep’t 2017); Antoine v. Nissan-Infiniti LT, 150 A.D.3d 941 (2d Dep’t

2017); Burrell v. NILT, Inc., 83 A.D.3d 984, 922 N.Y.S.2d 465 (2d Dep’t 2011); Gluck v. NILT,

Inc.,12 A.D.3d 1023, 898 N.Y.S.2d 881 (2d Dep’t 2010), Iv. denied, 16N.Y.3D 703 (2011).

Specifically, in Hernandez, the Appellate Division, First Department reversed the

trial court’s denial of a leasing company’s Motion to Dismiss pursuant to CPLR 3211, holding that

“...49 use § 30106, the ‘Graves Amendment,’ bars State law vicarious liability actions

commenced on or after August 10, 2005, against owners of motor vehicles ‘engaged in the trade

or business of renting or leasing motor vehicles,’ such as HUB [the lessor].” Hernandez, 40 A.D.3d

at 447.

Likewise, in Burrell, the Appellate Division, Second Department affirmed the

dismissal of an action against NILT, Inc., this precise Defendant, and held that because NILT, Inc.

{N 1549223.2 }

5 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

is a company engaged in the business of leasing motor vehicles, “to the extent that the complaint

sought to hold NILT, Inc. vicariously liable for [the defendant-driver’s] allegedly negligent

operation of the leased vehicle based solely on its ownership of the vehicle, such a claim was

barred by the Graves Amendment.” Burrell, 83 A.D.3d at 986. Similarly, in Graham, the Second

Department held that because the federal statute preempts NYVTL § 388, “actions against rental

and leasing companies based solely on vicarious liability may no longer be maintained.” Graham,

50 A.D.3d at 62.

Moreover, this Court has granted motions to dismiss in cases involving virtually

identical claims to the ones at bar. In Leung v. Nissan-Infmiti LT and NILT, Inc., et al, Index No.

154290/2019 (Sup. Ct., New York County, July 24, 2019) (Silvera, J.), this Court granted a Motion

to Dismiss served by this precise defendant, and held that NILT, Inc., as a leasing entity, is entitled

to Graves Amendment protection in accordance with 49 U.S.C. § 30106. See also Colon v. Toyota

Lease Trust, et al. Index No. 161209/2018 (Sup. Ct., New York County, Feb. 27, 2019) (Silvera,

J.); Taveras v. Nissan-Infiniti LT, Index No. 151089/2018 (Sup. Ct., New York County, May 16,

2018) (Silvera, J.); ilenzan/V. Toyota Motor Credit Corporation, e/a/., Index No. 157681/13 (Sup.

Ct., N.Y. Cty., June 25, 2014) (Bluth, J.); Candelario Toyota Motor Credit Corporation, et al.

Index No. 154296/12 (Sup. Ct., N.Y. Cty., Apr. 11, 2013) (Bluth, J.); Gomez v. Nissan-Infiniti LT,

Index No. 114753/08 (Sup. Ct., N.Y. Cty., Mar 12, 2010) (Silvera, J.). Copies of these decisions

are annexed collectively hereto as Exhibit “1”.

In addition to this Court’s aforementioned decisions, various trial courts throughout

New York State have uniformly dismissed vicarious liability actions commenced against

companies engaged in the business of leasing pursuant to the Graves Amendment. See Cinotti, et.

al V. NILT, Inc., etal. Index No. 6155567/2018 (Sup. Ct., Queens Nassau County, .luly 10, 2019)

{N1549223.2 }

6 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

(McCormack, J.); Bass v. Toyota Lease Trust, Index No. 30350/2017E (Sup. Ct. Bronx County,

April 5, 2018) (Sherman, J.); Islam v. Toyota Lease Trust, Index No. 717999/2017 (Sup. Ct.

Queens County, June 6, 2018) (Greco, J.); Cappas v. Toyota Lease Trust, Index No. 19350/13

(Sup. Ct, Kings County, June 18, 2014) (Ruchelsman, J.); Sattar v. Nissan-Infiniti LT, Index No.

601983/15 (Sup. Ct, Nassau County, July 22, 2015) (Murphy, J.). Copies of these decisions are

annexed collectively hereto as Exhibit “2.” In the case at bar, the company Affidavit of Feronkie

Clopton, Lease Agreement, and the Certificate of Title demonstrate that NILT, Inc. is an entity

unequivocally engaged in the business of leasing motor vehicles, including the leased Nissan at

issue. See Exhibits “C,” “D,” and “J” annexed to the Affidavit in Support.

It is undisputed that Plaintiff commenced this action long after the enactment of the

Graves Amendment. It is further undisputed that NILT, Inc. is engaged in the business of leasing

motor vehicles. As such, this Court, in accordance with the cited precedent should dismiss the

Complaint as against NILT, Inc.

POINT II

NILT CANNOT BE HELD LIABLE UNDER A THEORY OF
NEGLIGENT MAINTENANCE

Plaintiffs claim of negligent maintenance should be dismissed on the grounds that:

(i) Plaintiff has failed to set forth any facts from which a cause of action for negligent maintenance

may lie, and (ii) the evidence unequivocally establishes that NILT, Inc. was not responsible for

any maintenance or repairs to the leased vehicle at issue.

Plaintiffs Complaint contains the erroneous allegation that NILT, Inc.

“maintained” the leased vehicle at issue. See Summons and Complaint, annexed to the Affidavit

in Support as Exhibit “A”. Conspicuous by their absence are any facts alleged by Plaintiff in

support of this claim, as indeed none exist. It iswell settled that if the factual assertions do not

{N154922.3.2 } 7

7 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

manifest any cause of action, then the pleading fails to state a claim upon which relief may be

granted. See Guggenheimer, 43 N.Y.2d at 275. Accordingly, as Plaintiff has failed to set forth any

specific facts supporting the claim of negligent maintenance, the Complaint must be dismissed as

a matter of law.

Even if this Court finds that the Complaint sets forth “adequate factual assertions,”

it is respectfully submitted that those facts are contradicted by the documentary evidence and proof

submitted in support of the instant motion. The Appellate Division, First Department has held that

although plaintiffs are accorded the benefit of every inference, “claims consisting of bare legal

conclusions with no factual specificity—are insufficient to survive a motion to dismiss.” Barnes

V. //or/ge, 118 A.D.3d633,989N.Y.S.2d467(lstDep’t2014){citingGodfreyv. Spano, 13N.Y.3d

358, 373, 892 N.Y.S.2d 272, 920 N.E.2d 328 (2009)). In the instant matter, the “factual assertion”

of negligent maintenance on the part of the lessor is contradicted by the Lease Agreement and

leasing company witness affidavit which make clear that maintenance during the lease term was

solely the responsibility of the lessee. See Exhibits “C” and “J,” annexed to the Affidavit in

Support.

In Cukoviq, the Appellate Division, Second Department reversed the trial court’s

denial of the leasing companies’ Motion to Dismiss and held that “to the extent that the plaintiffs

theory of negligent maintenance or mechanical malfunction was supported by factual allegations,

the Nissan defendants established that the allegations were not facts at all through its submissions

showing that the Nissan defendants never possess, inspect, repair, maintain, or service the vehicles

they lease and that it was the sole responsibility of the lessee of the subject vehicle to maintain that

vehicle.” 169 A.D.3d at 766; see also Khan v. MMCA Lease, Ltd, 100 A.D.3d 833, 834 (2d Dep’t

2012); Aviaev v. Nissan Infiniti LT, 150 A.D.3d 807 (2d Dep’t 2017). In the case at bar, the

8 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

company witness Affidavit submitted on behalf of the lessor, the Response to the Notice to Admit,

and the tease agreement unequivocally establish that NILT, Inc. was not responsible for the

maintenance or repair of the vehicle at issue during the lease term. See Exhibits “C” at ^ 19, “I”,

and “J” at 8, annexed to the Affidavit in Support. Based upon the aforementioned precedent.

Plaintiffs claim must be dismissed.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that the instant motion be

granted, and Plaintiffs Complaint and all cross-claims as against NILT, Inc. be dismissed.

Dated; New York, New York
October 17, 2019

Attorneys for Defendant
NILT, Inc.
59 Maiden Lane
New York, NY 10038
(212) 972-1000

Of Counsel:
Clifford B. Aaron

{N1549223.2 }

9 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

EXHIBIT 1

10 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

[Filed new" Y0Rir~c6UNTY clerk 07/25/2019 10: 12~~AM| ™dex no, 154290/2019
NYSCEF DOC. NO, 31 DECEIVED NYSCEE: 07/25/2019

SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK

\1 INDEX NO. _ AldiZlAlzsdJ
- against -
PIninliffY-V
IAS PART ZX
OrJoy^
Lr\, ap/ A/ Irt, Dejendunl(s). ^T^ULATIQIT
OYCmACb
IT IS I lERDOY 'OTfWt3atTED'^ND~ AI3KtiEP by and between or among trip alioiiiuyb ■
rtamed bolow as followiSL. ,

5 pw-5c^qn7 y<3 -fh(^..(Vi ^
cl rT(^^~f^-ri j qY^ A -vlon .

A/T./--T _______^ ........ W , 0 C2JYL

^ -/
,?y.....3;.^-’— V^C S'^nloa
=---------------->■*
w* s.^ (
**—f-------- ^

------XX,l!LVX,-.>5----5^U5ia

o ,V' iJ£
n
Ui
a:
o:
us
LL
UJ c-K A *'<-
:j z
3 O

9.UJ
sir:
0.
CO o
Ui z
a: g
w o
d
es
if
2 o
Dated: „ --rJ/g.c.
HON. ADAM SILVERA
/ J.S.C.
1. CHECK ONE;.....................................................................
S/CASE DISPOSED □ NON-FINAL DISPOSITION
2. CHECK AS APPROPRIATE:......................... MOTION IS:
B^RANTED □ denied □ GRANTED IN PART □ OTHER

3. CHECK IF APPROPRIATE;................................................
□ SETTLE ORDER □ SUBMIT ORDER
□ do NOT POST □ FIDUCIARY APPOINTMENT □ REFERENCE

1 of 2

13 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

fflLEFT^NEW YORK COUNTY CLERK OS/16/2 018 11;40 AMl INDEX NO. 151089/2018
NYSCEf DOC. NO. 28 . ' RECEIVED NYSCEP; 05/16/2018

SUPKEME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
HON. ADAM SILVERA
Index Number: 151089/2018 J.S.C. 22
PART
TAVERAS, MARCOS F.
vs
NISSAN INFINITI LT INDEX NO.
Sequence Number: 001
MOTION DATE__
DISMISS I
! MOTION SEaNO._

Th0 following papers, numbered 1 to___were road on this motion to/for.
Notice of Motion/Order to Show Cause — Affidavits — Exhibits
_________ |N0(*)._
Answering Affidavits — Exhibits ________ _______________________ |No(s)..
■ Replying Affidavits_____ ;__________________________ ;_______ _ |No(8)..

Upon the foregoing papers, it is ordered that this motion Is

DECIDED IN ACCORDANCE WITH
accompanying DECISiON/ORDI^R
~5

ga
Sq:
tu
u.
UJ
o:

S
U)

io:o
z
w
iu
<
o
i
o
lU
Ui
§ g
g
s £
Dated; may 16 20 is .J.S.C.

1. CHECK ONE:...................... ...................
□ CASE DISPOSED /^NON-FINAL DISPOSITION
..MOTION IS: DgRANTED DDENIED □ GR/^T^!N PART DOTHER
2. CHECK AS APPROPRIATE;
3. CHECK IF APPROPRIATE: ...................
□ SETTl.E ORDER □ SUBMIT ORDER
□ do NOT POST □fiduciary APPOINTMENT □ REFERENCE

1 of 2

14 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

(FILED; "new"YORK COUNTY CLERir~057T^2018 YT';'4o“"am1~ "".....!i'ro?!''.!J!!!i'."'groW7rofy
NYSCEP DOC. NO. 28 ' RECEIVED NYSCBF: 05/16/2010

SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK

Muncas F Ikvems
INDEX NO.

PlainliMsJ
- against - IAS PART ^3.
lOtssciA Cr W
frJc(rnsA
Defmdantfs). .gTIPULA-^ON

IT IS HEREBY STIPULATED AND AGREED by and between or among the attorneys
named below as follows:
-p---- -— t2la/ Kl\SissAzl^.AiJi...LJs Mcri-i>iy\ -L
...tiiAnvia^
miks....hunsiJa^ 4h
:h,...^LtUf.^6K(lhjRj is grti^
Jl
- ^ j£v.Jle,-.Jk*sin(sss—<£Je£iTina /hotL- ^j^pL'cIss^ pJULJ -L (^mpx
i/haia ..imJ££ihA.in nrcntJuf^ce^ 3olO^

Ma cJp.r:k cT r^jrl- i'k —k—sa/gf'—-jL^. jRch^.p,__ajL_jmtW-
MEIL Q/lly..L.^ci,yiJ i°.rjr>C' .rtx., a/i aki

Attorney for Plaintifffs) Attorney for Defendant

A ttorney for Defendant. Attorney for Defendant

Dated;. le 2016

SO ORDERED;

ENTER:
J.S.C.
HON. ADAM SILVERA
J.S.C.

2 of 2

15 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

't^
SUPREME COURT OF THE STATE OP NV JtnlexNo,tl57«8l/I3
COUNTY OF NEW YORK! PART 22 I fM,
Motion Seq 01
Carlqs Benzftot,

-agalttst- BECISION/ORDER
Francisca Pena, Toyota Motor Credit Corporation, HON. ARLENE P. BLUTH, JSC
Lois A.. Ramirez Bt,aU .
, Ve/titdtmfs,

Delfendant Toyota’s motion to dismiss this action against It based upon the Graves
f

Amendment is granted.
The Graves Amendment prohibits the imposition of vicarious liability on vehicle lessors
for injuries resulting from the negligent use or operation of the leased vehicle (Tirado v Elrao,
2008 NV Slip Op 6506 [Ist Dept]) and applies to actions commenced on or after August 10,
2005 (see 49 USC §30106[c]; Hernandez v Sanchez, 2007 NY Slip Op 436! [1st Dept]). The
statute provides that "an owner of a motor vehicle that rents or leases the veWole 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 ofbeingthe owner of the vehicle (or an affiliateof 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-of the part of the owner (or an affiliate of the owner)’’ (49 USC §30106),
Tbcr and
Toyota shall be removedlfrom the caption; and it is ftoher

ORDERBD'that Clerk is directed to enter-judgment accordin^y, and it is further
ORDERED that Joxmsel for Toyota shall scave a copy of this order with notioe of entry

upon the County Clerk (J^oom 1418) and the Clerk of Trial Support (Room 158) who are
respectfully requested to |mend their records to reflect such change ir» the caption herein; and it

is further |
ORDERED that the remaining parties ate directed to appear at the June 10,2013 DCM
oonfbrence in Room 1 Oslso Centre Street at 9-30AM.

This is the Decision and Order of the Court.

Dated! AprU 11,2013 ^
New York, New York
HON. ARLENE P. ELUTH, JSC

Page 3 of 3

21 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

SUPREME court: OF THE STATE OF NEW YORK NEW YORK COUNTY
GEORGE J. SILVER
PRESENT: ........... 1^.________^_____ PART
Index Number: 114763/2008
GOME2, RAMON INDEX «t>,
vs MOriON DATE
■M/o
NISSAN INFINITY
MOrfON SEa.NO.
Sequence Number: 002
DISMISS MOTION CAt.NO,

llftt luiiumriki^ wthf# motkw) io/fot^
NUMBEHeO
i/M
Woiipo of Motion/ Ordot to Show Cau»o — AffWavlla •" Exhibit* .,9^ ^

tn
Aitiworlno Affidavit# — Exhibit*
RopJylnu Affidavit#_____ _. '
.................................
.....,__ ^ :a> A
I Cross-Motion:

o
m
s:
Upon th« foroflolng paper*, It la ordered that thi# motion
V
In this action to reijovor for personal injuries ^legedly sustained as a result of a motor
vehicle accident defendant Nilt, Inc. s/i/h/a Nissan Infinity LT. (hereinafter Nilt) moves pursuant
I
“9
§
2
to CPLR 3211 (a) (1) to dismiss tlie complaint ofplaintitfo Ramon Gomez and Marla Gomez
(hereinafter plaintifts) on the ground that, pursuant to 49 USC § 30105 (hereinafter the Grerves
o Amendment), the complaint fails to state a cause of aclicm. Plaintiffs Verified Complaint alleges
H
Cl that plaintiff Ramon Gomez was injured when hia vehicle and a vehicle operated by defendant

gI
Lisa M. Pitingolo and owned by Nilt came into oontaot Plaintiffs commenced the instant aotion
on November 23. 2008.
.The Graves Amendment prohibits the imposition of vioarioOB liability on vehicle Iessors
for injuries resulting ftom the negligwit use or operation of the leased vehicle (^Tirado v, Ekao
Jno,, 2008 NY Slip Op 6506 [!*' Dept]), applies to afi actions commenced on or after August 10,'
2005 (see 49 USC § 3010'6(o)), and has been enforced as preempting the vicarious liability
2 imposed on commercial lessors by Vehicle and Traffic Law § 388 (Graham v Duttkley^ 2008 NY
5
di
Slip Op 958 [2d Dept]) , The statute provides "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 foe 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
LU possession of the vehicle during the period of the rental or lease, if (1) the owner (or an affiliate
V)
of the owner) Is engaged in the trade or business of renting or leasing motor vehicles; and (2)
3 there is no neglige,nee or criminal wrongdoing, on the part of the owner (or an affiliate of the
sO owner).
Dated:
I Check one: . FINAL DISPOSITION 'X- NON*FINAL DISPOSITION
^.s,a

Check If appropriate: ' • 1 DO NOT POST ; ° REFERENCE

22 of 46
FILED: NEW YORK COUNTY CLERK 10/17/2019 04:11 PM INDEX NO. 157403/2019
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/17/2019

In support of its motion NIU submits a copy of tho rental agreement between co-defendant
Pitittgoio and Douglas Infiniti, dated June 21,2007 and the affidavit of John Brincgar,
Supervisor for Regional GoDcotions Department for Nissan Motor Acceptanoe Corporation, a
servlocr for Nllt.
This affidavit establishes that Nilt Is the managing trustee for Nissan-Jnfiniti
DT and the title owner of the vehicle motor vchlole Iti question*
The affidavit fhrthcr establishes
that at all rolevatrt times Nllt was engaged as trustee for Nlssan-Mnitl LT in the business of
leasing vehicles and that the lease agreement betv/cen defendant Pitingolo and Douglas infiniti
^Va3 subsequently assigned ftom tho dealersliip to Nissan-Mciti LT. Moreove

Case Info

Judge

Adam Silvera Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 17, 2019

Case Filing Date

July 30, 2019

County

Parties

CHAUDRY, BILAL Attorney for the Defendants
Fredrick L Weinstein Defendant
GRIMAL, ROBERT C. Attorney for the Defendants
Johnathan Benoit Defendant
Kai Williams Plaintiff
KAUFMAN, RICHARD G Attorney for the Plaintiff
KAUFMAN, RICHARD GARY Attorney for the Plaintiff
MANDELBAUM, TARA PATRICE Attorney for the Defendants
mercedes-benz of rockville centre Defendant
nilt,inc. Defendant
Shah, Payal S. Attorney for the Defendants
SLOTNICK, MICHAEL JONATHAN Attorney for the Defendants
GEORGE SILVER Attorney
RICHARD GEIB Attorneys for Plaintiffs
CLIFFORD AARON Attorneys for Defendants
ANNA DRYNDA Attorneys for Plaintiffs
ROBERT GRAVES Attorney
ROBERT GARAY Attorneys for Defendants
LEE PATTEN Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion,Ex Parte: Kai Williams v. Johnathan Benoit, Mercedes-Benz Of Rockville Centre, Fredrick L Weinstein, Nilt,Inc.

Preview

Related Topics

Case Info

Parties