[975 N.Y.S.2d 852]
Asher & Associated, P.C., New York, for Plaintiff.
Abrams, Gorelick, Friedman & Jacobson, LLP, New York, for Defendant.
DAVID I. SCHMIDT, J.
Upon the foregoing papers, defendants Zipcar, Inc. s/h/a Zipcar New York, Inc. (Zipcar) and Donlen Corporation (Donlen Corp.) move, pursuant to CPLR 3211(a)(7) and CPLR 3212, to dismiss the complaint of plaintiffs Moses Moreau and Inel Duverson (plaintiffs) and all cross claims insofar as asserted against them.
Facts and Procedural History
This action was commenced by plaintiffs to recover damages for personal injuries they sustained in a two-car accident that occurred on April 17, 2012, at approximately 3:15 A.M. on Linden Boulevard, near its intersection with Church Avenue in Brooklyn, New York. Plaintiffs were passengers in the first vehicle, a 2010 Nissan Altima Hybrid, operated by defendant Josaphat. The Nissan Altima was owned by Donlen Corp. Donlen Corp. had leased the Altima to Zipcar, and Zipcar had rented it to Mr. Josaphat, pursuant to its " Zipcar Membership Contract." Co-defendant Khurrum Shehzad was the owner, operator, and sole occupant of the second vehicle, a 2002 Ford Explorer. According to the accident report, Mr. Shehzad stated that as he was making a left turn from Linden Boulevard onto Church Street, he was struck by Mr. Josaphat's vehicle. Mr. Josaphat stated that while he was attempting to make a U-turn onto Linden Boulevard, he was struck by Mr. Shehzad's vehicle.
Subsequently, plaintiff commenced this action against defendants by the filing of a summons and verified complaint. The verified complaint alleges that plaintiffs' injuries were a result of negligence on the part of defendants who were careless, reckless, and negligent in their " ownership, operation, management, maintenance and control" of their respective vehicles in that defendants operated their vehicles " in reckless disregard for the safety of others ... at a dangerous rate of speed under the circumstances ... [and] failed to steer, maneuver and keep a proper lookout" and that " defendants permitted said vehicle to be improperly and/or defectively equipped with good and sufficient brakes ... and failed to properly apply the same at the time of the accident." The basis for plaintiffs' claim against Zipcar and Donlen Corp. is Vehicle and Traffic Law § 388, which imposes vicarious liability upon the lessor of a vehicle for the negligence of the driver.
Issue was joined by Zipcar by service of an amended answer, in which it raised the affirmative defense of the Graves Amendment (49 USC § 30106), which prohibits claims for vicarious liability against automobile rental companies in actions commenced after August 10, 2005. Issue was [975 N.Y.S.2d 853] subsequently joined by co-defendants Josaphat/Donlen, and Shehzad, in which they generally denied the allegations of the complaint.
Thereafter, Zipcar's counsel sent a letter to plaintiffs' counsel advising that Zipcar was not a proper party to the suit based upon the Graves Amendment, and asked that plaintiffs voluntarily discontinue the action against Zipcar. Plaintiffs, however, did not respond to the request.
Subsequently, Zipcar and Donlen Corp. (hereinafter " defendants" ) made the instant motion to dismiss plaintiffs' complaint. In support their motion, defendants argue that the two causes of action alleged against them by plaintiffs, namely that are vicariously liable for plaintiffs' injuries because they owned the Nissan Altima Zipcar vehicle operated by Mr. Josaphat, and that they negligently maintained the vehicle, are both without merit.
With respect to their former argument, defendants contend that the Graves Amendment explicitly prohibits claims for vicarious liability against a motor vehicle rental company such as Zipcar and against vehicle lessors, such as Donlen Corp. In support of this argument, defendants annex the sworn affidavit of Zipcar's Corporate Risk Manager, Ms. Gail Newman, as well as exhibits maintained by Zipcar, which Ms. Newman states were made in the regular course of Zipcar's business. Specifically, Ms. Newman avers that she performed a search of Zipcar's internal records and files, including the rental and maintenance history of the subject Nissan Altima, the title and the lease agreement, and the membership and application records of Mr. Josaphat, a Zipcar member and the operator of the Nissan Altima involved in the subject accident. According to Ms. Newman:
" Zipcar is a membership-based car-sharing company that provides short term car rentals to its members, where members pay fees and usage fees that are billable by the hour or day. Rental rates include gas, insurance, and roadside assistance-as outlined in the membership contract. Members can reserve vehicles online, over the phone, or through Zipcar's mobile applications.
* * *
Since its incorporation, and continuing to the present, Zipcar is and has been a company engaged in the business of renting motor vehicles as the term pertains to [the Graves Amendment]."
Ms. Newman further states that Zipcar leased the Nissan Altima from Donlen Corp. beginning on or about March 2, 2010; that she has been advised by Zipcar's attorneys that Zipcar is an " owner" of the subject vehicle as defined by Vehicle and Traffic Law § 128;  and that therefore " Zipcar ... and Donlen Corporation are afforded the protections set forth in the Graves Amendment." Ms. Newman also avers that a Zipcar membership contract dated January 10, 2012 existed between Zipcar and Mr. Josaphat on the date of the subject accident, which she annexes, and states that Mr. Josaphat's ...