| Ballatore v HUB Truck Rental Corp. |
| 2011 NY Slip Op 03531 [83 AD3d 978] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Franscesco Ballatore et al.,Appellants-Respondents, v HUB Truck Rental Corp., Respondent-Appellant, and DavidC. Butler et al., Respondents. |
—[*1] Malapero & Prisco, LLP, New York, N.Y. (Raymond J. Malapero and Frank J. Lombardo ofcounsel), for respondent-appellant. O'Connor Redd, LLP, White Plains, N.Y. (Amy L. Fenno and Jeremy Platek of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), enteredJanuary 12, 2010, as denied their cross motion for summary judgment on the issue of liability,and the defendant HUB Truck Rental Corp. cross-appeals, as limited by its brief, from so muchof the same order as denied its motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against it.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthe motion of the defendant HUB Truck Rental Corp. for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it and substituting therefor a provisiongranting the motion, and (2) by deleting the provision thereof denying those branches of theplaintiffs' cross motion which were for summary judgment on the issue of liability insofar asasserted against the defendants David C. Butler and Nuzzolese Bros. Ice Corporation andsubstituting therefor a provision granting those branches of the cross motion; as so modified, theorder is affirmed insofar as appealed from, with one bill of costs payable by the plaintiffs to thedefendant HUB Truck Rental Corp., and one bill of costs payable by the defendants David C.Butler and Nuzzolese Bros. Ice Corporation to the plaintiffs.
A vehicle operated by the plaintiff Franscesco Ballatore was stopped at a red traffic light atan intersection when it was allegedly hit in the rear by a rental truck driven by the defendantDavid C. Butler. Butler was driving the truck in the course of his employment with the defendantNuzzolese Bros. Ice Corporation (hereinafter Nuzzolese). Nuzzolese had rented the truck fromthe defendant HUB Truck Rental Corp. (hereinafter HUB).[*2]
Ballatore and his wife, suing derivatively, commencedthis action against HUB, Butler, and Nuzzolese to recover damages for personal injuriessustained in the accident. HUB moved for summary judgment dismissing the complaint and allcross claims insofar as asserted against it, contending that, under the Graves Amendment(see 49 USC § 30106), it could not be held vicariously liable for the accident. Theplaintiffs cross-moved for summary judgment on the issue of liability, arguing that the injuredplaintiff was rear-ended and that the defendants did not have a nonnegligent excuse for theaccident. The Supreme Court, inter alia, denied HUB's motion and the plaintiffs' cross motion,finding that triable issues of fact existed as to whether the accident was caused by the truck'sunanticipated brake failure and whether HUB exercised reasonable care in maintaining the brakesin good working order. The plaintiffs appeal and HUB cross-appeals. We modify.
Pursuant to the Graves Amendment (see 49 USC § 30106), generally, theowner of a leased or rented motor vehicle cannot be held liable for personal injuries resultingfrom the use of such vehicle if: (1) the owner is engaged in the trade or business of renting orleasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of theowner (see 49 USC § 30106 [a]; Graham v Dunkley, 50 AD3d 55, 58 [2008]). Here, HUBestablished its prima facie entitlement to judgment as a matter of law by showing that it wasengaged in the business of renting vehicles, that it was not negligent in maintaining the rentaltruck's brakes, and that the accident was not caused by brake failure. In opposition to HUB'smotion, no triable issues of fact were raised (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Accordingly, the Supreme Court should have granted HUB's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it.
The Supreme Court also should have granted those branches of the plaintiffs' cross motionwhich were for summary judgment on the issue of liability insofar as asserted against Butler andNuzzolese. "[A] rear-end collision establishes a prima facie case of negligence on the part of theoperator of the rear vehicle, thereby requiring that operator to rebut the inference of negligenceby providing a nonnegligent explanation for the collision" (Plummer v Nourddine, 82 AD3d 1069, 1069-1070 [2011] [citationsomitted]; see Ortiz v Hub Truck RentalCorp. 82 AD3d 725, 726 [2011]; Gleason v Villegas, 81 AD3d 889, 890 [2011]; Harris v Auto Palace Truck Rental &Leasing, Inc., 81 AD3d 691, 692 [2011]). "Where . . . the driver of theoffending vehicle lays the blame for the accident on brake failure, it is incumbent upon that partyto show that the brake problem was unanticipated and that reasonable care was exercised to keepthe brakes in good working order" (Vidal v Tsitsiashvili, 297 AD2d 638, 638 [2002];see Hollis v Kellog, 306 AD2d 244, 245 [2003]; Elgendy v Pilpel, 303 AD2d446, 447 [2003]; Schuster v Amboy Bus Co., 267 AD2d 448, 448-449 [1999]).
Here, the plaintiffs established, prima facie, that Butler, who was driving the truck in thecourse of his employment with Nuzzolese, rear-ended the injured plaintiff's vehicle while thatvehicle was stopped at a red traffic light (see Schuster v Amboy Bus Co., 267 AD2d at448). In opposition, Butler and Nuzzolese failed to raise a triable issue of fact as to the existenceof a nonnegligent explanation for the accident. The evidence in the record, including Butler'sdeposition testimony, indicated that the truck's brakes were, in fact, working at the time of theaccident and that the accident was caused by driver error rather than brake failure. Thus, theplaintiffs were entitled to summary judgment on the issue of liability insofar as asserted againstButler and Nuzzolese. The Supreme Court, however, properly denied that branch of the plaintiffs'cross motion which was for summary judgment on the issue of liability insofar as assertedagainst HUB, since the plaintiffs failed to establish, prima facie, any negligence on the part ofHUB (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Rivera, J.P.,Dickerson, Lott and Cohen, JJ., concur. [Prior Case History: 2010 NY Slip Op30059(U).]