Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny L. Baynes, J.), entered May 20, 2009.
Avis Rent A Car Sys., LLC v Wollner
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on January 26, 2011
PRESENT: PESCE, P.J., WESTON and GOLIA, JJ.
The order denied plaintiff's motion for summary judgment on its cause of action for breach of contract.
ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment on its cause of action for breach of contract is granted as to liability only, and the matter is remitted to the Civil Court for a trial limited to the issue of damages.
Plaintiff, a car rental company, commenced this action to recover for damage to an automobile it rented to defendant, based on theories of breach of contract and negligence. The court denied plaintiff's motion for summary judgment in the sum of $19,763.44 on its cause of action for breach of contract, and this appeal ensued.
Plaintiff made a prima facie showing that defendant breached the contract. Plaintiff's moving papers contained a copy of the terms and conditions incorporated into the rental contract signed by defendant, which, in relevant part, provided that if defendant declined the loss damage option, which he did, he would be responsible for any damage sustained to the car during the rental period. In addition, plaintiff submitted proof that the vehicle was damaged during the rental period. Plaintiff also included an affidavit of its claims examiner, which established that defendant had failed to reimburse plaintiff for the damage or otherwise respond to plaintiff's demand letter dated October 25, 2007 as the contract required.
By thus establishing its prima facie entitlement to judgment as a matter of law on the issue of liability, plaintiff shifted the burden to defendant to come forward with evidence in admissible form showing the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 ; Pesa v Yoma Dev. Group, Inc., 74 AD3d 769 ). Defendant failed to oppose plaintiff's motion. The unsupported contention in his verified answer that his credit card company, American Express, was responsible for any of the alleged damages, was insufficient to raise a triable issue of fact. We note that even if defendant's credit card company was responsible for the loss, paragraph eight of the terms and conditions of the rental agreement obligated defendant to inform plaintiff of the credit card company's insurer. Plaintiff established that defendant did not comply with this requirement. Consequently, the Civil Court should have granted plaintiff's motion for summary judgment on the issue of liability.
With respect to the issue of damages, the proof tendered by plaintiff was insufficient. Plaintiff failed to present evidence in admissible form of the pre-loss value of the vehicle and to explain how it calculated the "loss of use" or "administrative fee" components of the amount it sought as damages.
Accordingly, plaintiff's motion for summary judgment on its cause of action for breach of contract is granted on the issue of liability only, and the matter is remitted to the Civil ...