| Khan v MMCA Lease, Ltd. |
| 2012 NY Slip Op 07960 [100 AD3d 833] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Shawkat Ali Khan, Respondent, v MMCA Lease, Ltd.,Appellant, et al., Defendant. |
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In an action to recover damages for personal injuries, the defendant MMCA Lease, Ltd.,appeals from an order of the Supreme Court, Queens County (Butler, J.), entered January 6,2012, which denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantMMCA Lease, Ltd., pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as assertedagainst it is granted.
On December 12, 2010, at the intersection of West 54th Street and 9th Avenue in Manhattan,the plaintiff was operating a motor vehicle when it allegedly was struck by a motor vehicleoperated by Sharon Rodriguez and owned by the defendant MMCA Lease, Ltd. (hereinafterMMCA). Following the commencement of this action, MMCA moved pursuant to CPLR 3211(a) (7) to dismiss the complaint insofar as asserted against it on the ground that it is entitled to theprotection of the Graves Amendment (49 USC § 30106) and, therefore, could not be heldvicariously liable for Rodriguez's allegedly negligent operation of the leased vehicle based solelyon its ownership of the vehicle. The Supreme Court denied the motion.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).However, bare legal conclusions are not presumed to be true (see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021[2007]; Mayer v Sanders, 264 AD2d 827, 828 [1999]). Moreover, where evidentiarymaterial is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a) (7), and the motion is not converted into one for summary judgment, the question becomeswhether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless ithas been shown that a material fact as claimed by the plaintiff to be one is not a fact at all andunless it can be said that no significant dispute exists regarding it, dismissal should not eventuate(see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275 [1977]; Fishberger v Voss, 51 AD3d 627,628 [2008]).[*2]
Under the Graves Amendment, in order for recovery to bebarred, the owner, or an affiliate of the owner, must be engaged in the trade or business of rentingor leasing motor vehicles, and the owner, or its affiliate, must not be negligent (see Graham v Dunkley, 50 AD3d55, 57-58 [2008]).
Here, MMCA showed that it was the owner of the subject vehicle and was engaged in thebusiness of renting or leasing motor vehicles (see Gluck v Nebgen, 72 AD3d 1023 [2010]). Additionally, to theextent that the plaintiff's claim that MMCA negligently maintained the subject vehicle wassupported by factual allegations, MMCA established that they were not facts at all through itssubmissions showing that it did not engage in the repair and maintenance of the vehicles it leasesand that it was the sole responsibility of the lessee, Rodriguez, to maintain the subject vehicle(see Guggenheimer v Ginzburg, 43 NY2d at 275; see also Gluck v Nebgen, 72AD3d at 1023).
Accordingly, the Supreme Court should have granted MMCA's motion pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against it. Mastro, J.P., Rivera,Chambers and Lott, JJ., concur.