Supreme Court, Appellate Division, Second Department, New York.

Alfred A. THORPE, respondent,

v.

AUTOZONE, INC., et al., appellants.

2021–00810

(Index No. 528167/19)

Argued—October 31, 2022

January 25, 2023

Attorneys and Law Firms

Smith Sovik Kendrick & Sugnet, P.C., Syracuse, NY (David M. Katz and Steven Ward Williams of counsel), for appellants.

Abrams Law Group, P.C., Forest Hills, NY (Michael Stea and Melanie Abrams of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

*1 In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated November 30, 2020. The order, insofar as appealed from, denied the motion of the defendant Lease Plan USA, Inc., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, and granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability against the defendant Jonathan Harman.

ORDERED that the appeal by the defendant AutoZone, Inc., is dismissed, as that defendant is not aggrieved by the portions of the order appealed from (see CPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156, 904 N.Y.S.2d 132); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendants Lease Plan USA, Inc., and Jonathan Harman; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On December 10, 2019, the plaintiff, a pedestrian, allegedly was injured when he was struck by a vehicle operated by the defendant Jonathan Harman on Flatbush Avenue in Brooklyn as Harman was making a left-hand turn into a parking lot. The vehicle was owned by the defendant Lease Plan USA, Inc. (hereinafter Lease Plan), and leased to the defendant’s employer, the defendant AutoZone, Inc. (hereinafter AutoZone). The plaintiff thereafter commenced this action to recover damages for personal injuries, alleging, inter alia, that the defendants were negligent in failing to avoid contact with him. Prior to answering the complaint, Lease Plan moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it on the ground that, as the lessor of the vehicle that struck the plaintiff, it was shielded from liability for the plaintiff’s injuries by the Graves Amendment (see 49 USC § 30106). The plaintiff opposed Lease Plan’s motion and cross-moved for summary judgment on the issue of liability. In an order dated November 30, 2020, the Supreme Court, inter alia, denied Lease Plan’s motion on the ground that it was premature and granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability against Harman. The defendants appeal.

“ ‘A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant’s negligence was a proximate cause of the alleged injuries’ ” (Shah v. MTA Bus Co., 201 A.D.3d 833, 834, 161 N.Y.S.3d 311, quoting Hai Ying Xiao v. Martinez, 185 A.D.3d 1014, 1014, 126 N.Y.S.3d 369; see generally Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366). “A driver is bound to see what is there to be seen with the proper use of his or her senses” (Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 790, 111 N.Y.S.3d 92). Thus, in a pedestrian-vehicle accident case, a plaintiff moving for summary judgment on the issue of liability establishes his or her prima facie entitlement to judgment as a matter of law “by demonstrating, prima facie, that the defendant was negligent in the operation of his [or her] vehicle in striking [the plaintiff]” (Mims v. Hobbs, 191 A.D.3d 870, 871, 138 N.Y.S.3d 906; see Vehicle and Traffic Law § 1146[a]; Marks v. Rieckhoff, 172 A.D.3d 847, 848, 101 N.Y.S.3d 63; Simeone v. Cianciolo, 118 A.D.3d 864, 865, 988 N.Y.S.2d 257).

Here, in support of his cross-motion, the plaintiff submitted his own affidavit, which demonstrated that he was walking on the sidewalk along Flatbush Avenue when he was struck by Harman’s vehicle as it was making a left turn across the sidewalk into an AutoZone parking lot. This evidence was sufficient to establish the plaintiff’s prima facie entitlement to judgment as a matter of law on the issue of liability against Harman (see Mims v. Hobbs, 191 A.D.3d 870, 138 N.Y.S.3d 906; Gaston v. Vertsberger, 176 A.D.3d 919, 920, 111 N.Y.S.3d 314; Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 111 N.Y.S.3d 92; Huang v. Franco, 149 A.D.3d 703, 51 N.Y.S.3d 188; Simeone v. Cianciolo, 118 A.D.3d at 865, 988 N.Y.S.2d 257).

In opposition, Harman failed to raise a triable issue of fact. Although Harman submitted his own affidavit, which conflicted with certain aspects of the plaintiff’s affidavit, Harman’s affidavit established that his vehicle struck the plaintiff as the plaintiff was crossing in front of the vehicle while Harman was pulling into the parking lot—a location in which it could be reasonably expected that a pedestrian might appear—and therefore, Harman failed to “exercise due care to avoid colliding with any … pedestrian” (Vehicle and Traffic Law § 1146[a]; cf. Mancia v. Metropolitan Tr. Auth. Long Is. Bus, 14 A.D.3d 665, 790 N.Y.S.2d 31). Contrary to Harman’s contention, this branch of the plaintiff’s cross-motion was not premature (see CPLR 3212[f]; Sapienza v. Harrison, 191 A.D.3d 1028, 142 N.Y.S.3d 584; Sterling Natl. Bank v. Alan B. Brill, P.C., 186 A.D.3d 515, 518, 129 N.Y.S.3d 151; Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770, 989 N.Y.S.2d 302). Accordingly, the Supreme Court properly granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability against Harman.

*2 The Supreme Court also properly denied Lease Plan’s motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, in effect, for failure to state a cause of action, albeit we affirm that determination on a ground different from that relied upon by the court. Contrary to the court’s determination, Lease Plan’s motion, which had not been converted into a motion for summary judgment, was not premature (see id. §§ 3211[d]; 3212[f]). Nonetheless, the motion was properly denied. “Pursuant to the Graves Amendment (49 USC § 30106), the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) 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” (Harewood v. Zip Car, 189 A.D.3d 1192, 1193, 134 N.Y.S.3d 264; see Cukoviq v. Iftikhar, 169 A.D.3d 766, 767, 93 N.Y.S.3d 710). Here, by submitting an affidavit from its chief commercial officer, Ricardo Fonzaghi, Lease Plan demonstrated that it was the owner of the vehicle that Harman was driving and it was engaged in the business of leasing motor vehicles (see Cukoviq v. Iftikhar, 169 A.D.3d at 767, 93 N.Y.S.3d 710; Aviaev v. Nissan Infiniti LT, 150 A.D.3d 807, 808, 55 N.Y.S.3d 297). However, to the extent that the plaintiff’s theory of negligent maintenance or mechanical malfunction was supported by factual allegations, Lease Plan failed to establish, through the submission of documentary evidence, that the allegations were not facts at all (see CPLR 3211[a][7]; Harewood v. Zip Car, 189 A.D.3d at 1193, 134 N.Y.S.3d 264).

DILLON, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.

All Citations

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