Motion to Dismiss in Marjorie A. Lesch v. Advantage Rent A Car, Nirav Girishkumar Patel| Trellis.Law

On February 07, 2019 a Judgment was filed involving a dispute between Marjorie A. Lesch, and Advantage Rent A Car, Nirav Girishkumar Patel, for Torts - Other (Motor Vehicle Accident) in the District Court of Bronx County.

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FILED: BRONX COUNTY CLERK 11/21/2019 10:39 AM INDEX NO. 21597/2019E
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/21/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-X
MARJORIE A. LESCH,
JUDGMENT
Plaintiff,
Index No. 21597/2019E
-against-
IAS Part
ADVANTAGE RENT A CAR and NIRAV GIRISHKUMAR
PATEL, Hon. John R. Higgitt, J.S.C.

Defendants.
X

Defendant, Advantage Rent A Car, by Smith Mazur° Director Wilkins Young &

Yagennan, P.C., having moved before this Court moved before this Court for dismissal pursuant

to CPLR §3211 and upon the Decision and Order dated November 1, 2017, a copy of which is

annexed hereto as Exhibit "A", said Decision and Order granting the motion of defendant,

Advantage Rent A Car nd dismissing all claims and cross-claims against defendant, Advantage

Rent A Car; now it is

ADJUDGED that Advantage Rent A Car shall have judgment pursuant to CPLR

§32I2 dismissing all claims and cross-claims as against them in their entirety, and that judgment

is hereby so entered accordingly; and pursuant to the Affirmation on No Costs, Defendant

Advantage Rent A Car will not be seeking costs in connection with this Judgment; and it is

further

ADJUDGED that Defendants shall serve a copy of this judgment with notice of
I f,
entry upon all parties.

ENTER:
NOV 21. 2011)::
couNn-ki CLERIC OF 1 COURT
LLAI
KI0-00104/108

-2-

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
X
MARJORIE A. LESCH,
AFFIRMATION OF NO
Plaintiff, COSTS

-against- Index No. 21597/2019E

ADVANTAGE RENT A CAR and NIRAV GIRISHKUMAR IAS Part
PATEL,
Hon. John R. Higgitt, J.S.C.
Defendants.
-X

DANIEL Y SOHNEN, an attorney duly admitted to practice law in the Courts of New

York, hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR

2106:

I. I am a member of the firm of Smith Mazure Director Wilkins Young &

Yagerman, P.C., attorneys for defendant Advantage Rent A Car and Nirav Girishicumar Patel,

and I am fully familiar with the facts and circumstance surrounding the within action.

2. Defendant Advantage Rent A Car, will not be seeking costs from the plaintiff,

Marjorie A. Leseh in connection with the annexed Judgment pursuant to CPLR §3211. As such,

there is no Bill of Costs annexed hereto.

Dated: New York, New York
November 7,2019

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FILED: BRONX COUNTY CLERK 11/21/2019 10:39 AM INDEX NO. 21597/2019E
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/21/2019

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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/21/2019

WILED: BRONX COUNTY CLERK 11/07/2019 112:18 P$ INDER'NO. 1597/2019EHr;
NYSCEF DDC. NO. 47 RECEIVED NYSCEF: 11/07/2019

SUPREME .COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX; !A.S. PART 14
--- — --------
MARJORIE A ,LESCH.
DECISION AND ORDER
Plaintiff.
against Index No. 215;97/2019E

ADVANTAGE RENT A CAR and NIRAV
G1RISHKUMAR PATEL.
Defendants.
Vans. ••••••••Ar. X

John R. Higgitt,

Upon the September 10,2019 notice of motion of defendant Advantage Rent:A Car

(Advantage) and the affirmation and exhibits submitted in support thereof; there being no

opposition to the motion; arid due deliberation; defendant Advantage's motion for leave to renew

its prior motion for -dismissal of the complaint as againstit is tamed and upon renewal. the

dismissal of the complaint as against defendant Advantage is granted.

This negligence action arises out of a motor vehicle accident that occurred on July 26,

2018. Defendant Advantage renews its motion for dismissal of the complaint as against it under

CNA 3211(a)7), after its original motion was denied without prejudice to renewal. The prior

motion was denied because defendant failed to address the new allegations in plaintiffs

amended complaint alleging defendant Advantage's failure to maintain the allegedly offending

vehicle. The present motion addresses such allegations.

Under the Graves Amendment (49 USC §30106). the owner of a leased or rented motor

, vehicle is not vicariously liable for:personal injuries sustained as a result of an accident invrilving

a leased oriented vehicle (tree Jones v Bill, 10 NY3d 550, 554 [2008]). To establish entitlement

to judgment under the Graves Amendment, the owner of the leased or rented vehicle must show:

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[PILED: BRONX COUNTY CLERK 11/0712019 1D2 :18 PMJ INDEX NO. 21597/2019E -
NYSCEF D C. NO. Al RECEIVED NYSCEF: 11/07/2019

(1) that the owner is in:the business of leaSing or rentingmotor vehicles; (2) that the owner

owned the subject vehicle; (3) that the owner Icasd or rented the subject vehicle to athird party;

arid (4) if plaintiff alleges that:the owner was independently negligent, that the resulting accident

was not caused by negligent maintenance Of the Vehitlaby the owner (see filla-Ccipelkin

Mendoza. 135 AD3d 555,556 [1st Dept 20[6]; Cassidy r [KIS Trust. 89 A03d 391,591 [1st

Dept 2011]; setalth ReOnyzfer ifrPetiske Tettek Leyving Cop., 140 AD3d 572 [1st Dept 2016p.

In support OEMs motion, defendant Advantage submitted the pleadings, the rental

agreement, the affidavit of Tatiana Morales (claims analyst of AEZ Rent A C'ar). and the

affidavit of defendant Patel. In her affidavit. Morales avers that defendant Advantage is in the

business of renting and leasing vehicles arid that on the'date Of the accident, the subject \chicle

was rented to codefendant Patel, as confirmed by the lease agreement. Morales farther avers that

there was no history of complaints or maintenance issues, Furthermore, dekndant Patel averred

that he rented the subject vehicle from defendant Advantage and did not experience any

mechanical or electrical malfunctions with the vehicle.

On a motion to dismiss the complaint for failure to state a cause of action under CPIS_

32 11(aX7). the court must accord the: pleadings a liberal construction, accept the facts alleged as

true, afford the plaimitT every reasonable favorable inference.and:determine whether the facts:

alleged fit within .a cognizable legal theory (see Connentiliton erhipolle Mexican Gkilt Inc., 29

NY3d 137 [2017D. Where a defendant submits evidence in supportof the motion. the standard is

whether the plainti ithav a valid cause or action, not whether plaintiff stated one (see Lenin'

Martinet. 84 NY2c183 119941: Basis Yield Alpha Fund (Master) v Goldman Sao& Group. Ine.,

115 AD3d 128 [1st Dept 2014)).

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WILED: BRONX COUNTY CLERK 11/07/2019 22:18 1:141 INDEX NO. 21597/2014g
NYSCEF'DtC. NO. 4/ RECEIVED NYSCEF: 11/07/2019

Here, defendant Advantage's evidence --.:the affidavits and lease agreement —

conclusively established that plaintiff has no cause of action against defendant Advantage

because of the applicability of the Graves Amendment (see genera By Basis Yield Alpha Fund

(Master) v Goldman Satin Group, Mc., supra).

No party opposed the motion.

Accordingly, it is

ORDERED, that the aspect of defendant Advantage's motion for leave to tenew the

August 23, 2019 decision and order of the undersigned is granted. without opposition: and it is

further

ORDERED, that upon renewal, the aspect of defendant Advantage's motion for dismissal

of the complaint is granted, and the complaint as against it and the cross claims against it are

dismissed; and it is further

ORDERED, that the Clerk of the Court shall enter judgment in favor of defendant

Advantage dismissing the complaint as against it and the cross claims against it.

The remaining parties are reminded of the December 13. 2010 compliance conference

before the undersigned.

This constitutes the decision and order of the court.

Dated: November 1, 2019

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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/21/2019

STATE OF NEW YORK, COUNTY OF NEW YORK ss.:

AFFIDAVIT OF SERVICE BY ELECTRONIC FILING AND FIRST CLASS MAIL

Gloria Shand, being duly sworn, deposes and says that deponent is employed by
Smith Mazure Director Wilkins Young & Yagerman, P.C., the attorney for Defendants
Advantage Rent A Car and Nirav Girishkumar Patel, is over the age of eighteen, is not a party to
this action, and resides at Brooklyn, NY.

On November 12, 2019, deponent served the within Judgment with Notice of
Settlement upon:

Lesch & Lesch, P.C.
860 Grand Concourse, Suite 2M
Bronx, NY 10451

the addresses designated by said attorneys for that purpose by depositing a true copy of same
enclosed in a postpaid properly addressed wrapper in - a post office - official depository under
the exclusive care and custody of the United States post office department within the State of
New York.

4bu.4"4
. loria Shand

Sworn to before me
November 12,2019

r
MARIA C. ENGEL
Notary Public, State of New Volt(
No. 01EN5089958
Queried in Kings County
Commission Blares December 9,20

KIG-00104//108

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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/21/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
X
MARJORIE A. LESCH,
JUDGMENT WITH NOTICE
Plaintiff, OF SETTLEMENT

-against- Index No. 21597/2019E

ADVANTAGE RENT A CAR and NIRAV GIRISHKUMAR IAS Part
PATEL,
Hon. John R. Higgitt, J.S.C.
Defendants.
X

PLEASE TAKE NOTICE that the within is a true copy of a judgment that will be

presented for settlement to the judgment clerk of the within named Court at 851 Grand

Concourse, Bronx, NY 10451, on November 20,2019, at 9:30 a.m.

Dated: New York, New York
November 7, 2019

Yours, etc.,

SMITH MAZURE DIRECTOR WILIC1NS
YOUNG & YAGERMAN, P.C.
Attorneys for Defendants
Advantage Rent A Car and Nirav Girishkumar
Patel
111 John Street
New York, NY 10038
(212) 964-7400
Our File No. KIG-00104

TO:

Lesch & Lesch, P.C.
860 Grand Concourse, Suite 2M
Bronx, NY 10451
(718) 292-1131/(718) 292-1148 (F)
Attorney for Plaintiff
Marjorie A. Lesch

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FILED: BRONX COUNTY CLERK 11/21/2019 10:39 AM INDEX NO. 21597/2019E
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 11/21/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX

X
MARJORIE A. LESCH,

Plaintiff,

-against-
INDEX NO. 21597/2019E
ADVANTAGE RENT A CAR and NIRAV GIRISHKUMAR PATEL,

Defendants.
X

JUDGMENT WITH NOTICE OF SETTLEMENT

SMRH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C.
Attorneys for Defendants
Advantage Rent A Car and Nirav Girishkumar Patel
111 John Street
New York, NY 10038
(212)964-7400
16G-00104

CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. 4130-1.1a
- Daniel Y. Sohnen hereby certifies that, pursuant to 22 N.Y.C.R.R. §130-lie, the foregoing Jud
with Notice of Settlement Is
not frivolous nor frivolously presented.

Dated: New York, New York Daniel Y nen
November 7, 2019

PLEASE TAKE NOTICE

that the within Is a true copy of a entered in the office of the clerk of the within named Court Cr

that a Judgment of which the within Is a true copy will be presented for settlement to the Judgment Clerk of the within narned Court
at 851 Grand Concourse, Bronx, NY 10451 , on November 20, 2019 at 9:30 a.m.

TO: All Counsel

108

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Bianka Perez Track Judge’s New Case

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Document Filed Date

November 21, 2019

Case Filing Date

February 07, 2019

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Judgment: Marjorie A. Lesch v. Advantage Rent A Car, Nirav Girishkumar Patel

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