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Kim v. Doe

Supreme Court of New York, Appellate Division, Second Department

July 31, 2009

Larry Kim and ELIAS POSTH, Appellants, "
v.
John Doe", Said Name Being Fictitious and Intended to Represent an Unidentified Driver Of a Ford Expedition on May 9, 2002, Defendant, -and- PATRIOT FORD and FORD MOTOR COMPANY, Respondents.

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (Leslie J. Purificacion, J.), entered February 28, 2008. The order, insofar as appealed from as limited by the brief, granted so much of a motion by defendant Ford Motor Company, and of a cross motion by defendant Patriot Ford, as sought summary judgment dismissing the complaint on the ground that the action is barred pursuant to a release.

Order, insofar as appealed from, reversed without costs, so much of the motion by defendant Ford Motor Company, and of the cross motion by defendant Patriot Ford, as sought summary judgment on the ground that the action against them is barred pursuant to a release denied, complaint reinstated, and matter remitted to the Civil Court for a determination of said defendants' respective motions insofar as they sought summary judgment on other grounds.

On May 9, 2002, plaintiffs, who were automobile salesmen, attended a "Ride and Drive" seminar, at which they allegedly sustained serious injuries while riding as passengers in a Ford Expedition during a test drive of the vehicle. The vehicle was owned by defendant Ford Motor Company (Ford) and was being driven by an employee of defendant Patriot Ford (Patriot). Before entering the vehicle, plaintiffs executed a release which provided that plaintiffs were waiving, releasing and discharging, inter alia, the promoters, participants, officials, car owners and drivers from all loss or damage or claim for injury "arising out of or related to the event(s), whether caused by the negligence of the releasees or otherwise."

Plaintiffs thereafter brought this action sounding in negligence against, inter alia, Ford and Patriot. Ford moved, and Patriot cross-moved, for summary judgment dismissing the complaint, on the grounds, among others, that they were not liable for the accident, that plaintiffs had not suffered serious injuries, and that plaintiffs are barred from bringing the action against them because plaintiffs had executed a release and had waived all claims for injuries arising out of the event. In addition, Ford argued that it cannot be held liable as owner of the vehicle pursuant to Vehicle and Traffic Law § 388 (1), as plaintiffs had waived their right to hold Ford liable. In opposition to the motions, plaintiffs argued, inter alia, that the release was inapplicable since the injuries were not sustained during the event, as the individual operating the vehicle drove it off the designated area where the test drive was to be conducted.

The Civil Court granted Ford's motion and Patriot's cross motion for summary judgment on the ground that plaintiffs had signed the release and had thereby released Ford and Patriot from liability for any and all injuries sustained at the event. The court further found that Vehicle and Traffic Law § 388 did not invalidate the release executed by plaintiffs in favor of Ford, as owner of the vehicle, since there was no language in the statute prohibiting such an agreement. The court did not reach the remaining grounds raised in support of the motions for summary judgment.

On appeal, plaintiffs contend that the release is not enforceable against them because it is vague and ambiguous, and that it is inapplicable because the acts alleged did not arise out of the event, since the driver drove the vehicle off the intended course for the "Ride and Drive."

In our view, the Civil Court erred in granting summary judgment based upon the release. Whereas the release contains a provision releasing and discharging Ford and Patriot for all claims for injury arising out of or related to the "event(s)," plaintiffs have raised a question of fact as to whether the injuries arose out of or are related to the "event(s)." The term "event(s)" is not defined in the release. Since the language of the agreement is ambiguous, its construction may not be resolved by the court on a motion for summary judgment (see NFL Enters. LLC v Comcast Cable Communications, LLC, 51 A.D.3d 52, 61 [2008]).

Additionally, plaintiffs' action against Ford is premised on a vicarious liability theory pursuant to Vehicle and Traffic Law § 388 (1). Vehicle and Traffic Law § 388 states, in relevant part, that:

       "Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. "

Vehicle and Traffic Law § 388 was enacted to "ensure access by injured persons to a financially responsible... person against whom to recover for injuries" (Morris v Snappy Car Rental, 84 N.Y.2d 21');">84 N.Y.2d 21, 27 [1994] [internal quotation marks and citations omitted]). In Morris, a similar release of a lessor of a vehicle by the lessee was held to be against public policy. While said holding was ultimately preempted by federal law (49 USC § 30106; see Graham v Dunkley, 50 A.D.3d 55 [2008], appeal dismissed 10 N.Y.3d 838 [2008]) with respect to releases given by lessees of rental vehicles to their lessors, the rationale of the Morris decision is still viable with respect to releases given by ones other than lessees in favor of owners of vehicles. Consequently, the attempt by Ford to completely disclaim liability imposed upon it as an owner under section 388 is contrary to public policy, and, thus, the release, insofar as it is in favor of Ford, is, in any event, unenforceable (see Morris, 84 N.Y.2d at 27; Griffin v Fun Jung La, 229 A.D.2d 468, 469 [1996]), unless Ford can establish at trial that the operator of said vehicle used it without Ford's express or implied permission.

Since the Civil Court did not address the alternate grounds raised in the motion and cross motion for summary judgment, the matter must be remitted to the Civil Court for further consideration and determination of said remaining grounds (see e.g. McElroy v Sivasubramaniam, 305 A.D.2d 944 [2003]; McCarthy v Community Hosp. of Glen Cove, 203 A.D.2d 432 [1994]).

Pesce, P.J., and Rios, J., ...


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