| Burrell v Barreiro |
| 2011 NY Slip Op 03535 [83 AD3d 984] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Gena Burrell, Appellant, v Paula A. Barreiro, Defendant,and NILT, Inc., Respondent. |
—[*1] London Fischer, LLP, New York, N.Y. (Clifford B. Aaron and Stephanie I. Kudrle ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Queens County (Nelson, J.), entered January 15, 2010, which, upon an orderof the same court dated October 29, 2009, granting the motion of the defendant NILT, Inc., todismiss the complaint insofar as asserted against it, is in favor of NILT, Inc., and against herdismissing the complaint insofar as asserted against that defendant.
Ordered that the judgment is affirmed, with costs.
On March 22, 2006, the defendant Paula A. Barreiro entered into an agreement to lease a2006 Nissan Altima from Westbury Nissan, LLC (hereinafter the dealership), for a period of 39months. The dealership immediately assigned the lease to Nissan-Infiniti LT (hereinafter Infiniti),which is in the business of leasing motor vehicles. Upon assignment of the lease, the defendantNILT, Inc. (hereinafter NILT), the managing trustee of Infiniti, became the record title holder ofthe leased vehicle. Approximately one month later, Barreiro was driving the leased vehicle whenshe struck a vehicle owned and driven by the plaintiff Gena Burrell. Shortly after the accident,the plaintiff commenced this personal injury action against Barreiro and NILT seeking, in part, tohold NILT vicariously liable for Barreiro's allegedly negligent operation of the leased vehiclebased on its status as title holder. NILT subsequently moved to dismiss the complaint insofar asasserted against it based upon the Graves Amendment (49 USC § 30106 [a] [1]), whichbars State law vicarious liability actions commenced after August 10, 2005, against motorvehicle owners "engaged in the trade or business of renting or leasing motor vehicles." TheSupreme Court granted NILT's motion, and thereafter entered a judgment in favor of NILTdismissing the complaint insofar as asserted against it. We affirm.
Contrary to the plaintiff's contention, NILT established that it was entitled to the protectionof the Graves Amendment through the affidavit of an employee of its servicing agent, NissanMotors Acceptance Corporation. The servicing agent's employee had sufficient personalknowledge to authenticate the lease for the subject vehicle, which was annexed to his affidavit(see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]), and to demonstratethat NILT, in its capacity as trustee for Infiniti, was [*2]an "owner(or an affiliate of the owner) . . . engaged in the trade or business of renting orleasing motor vehicles" (49 USC § 30106 [a] [1]; see Byrne v Collins, 77 AD3d 782 [2010]; Gluck v Nebgen, 72 AD3d 1023[2010]; Hernandez v Sanchez, 40AD3d 446, 447 [2007]). Accordingly, to the extent that the complaint sought to hold NILTvicariously liable for Barreiro's allegedly negligent operation of the leased vehicle based solelyon its ownership of the vehicle, such a claim was barred by the Graves Amendment (see Byrne v Collins, 77 AD3d 782[2010]; Gluck v Nebgen, 72 AD3d1023 [2010]; Graham vDunkley, 50 AD3d 55 [2008]; Hernandez v Sanchez, 40 AD3d at 447).
The Supreme Court also properly concluded that NILT could not be held liable on anegligent entrustment theory. NILT demonstrated that Barreiro leased the subject vehicle fromthe dealership rather than from NILT, and the plaintiff did not allege that NILT played a role inthe dealership's decision to lease the vehicle to her. Moreover, even if NILT had been involved inthe decision to lease the vehicle to Barreiro, the plaintiff failed to allege that NILT possessedspecial knowledge concerning a characteristic or condition peculiar to Barreiro that rendered heruse of the leased vehicle unreasonably dangerous (see Byrne v Collins, 77 AD3d 782 [2010]; Cook v Schapiro, 58 AD3d 664,666 [2009]; cf. Pacho v Enterprise Rent-A-Car Co., 572 F Supp 2d 341, 352 [2008]).
The plaintiff's remaining contentions are without merit. Covello, J.P., Florio, Eng andChambers, JJ., concur.