Cassidy v. DCFS Trust

89 A.D.3d 591, 933 N.Y.2d 31

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2011
• Status: Published

Opinion

DCFS Trust, as movant, failed to meet its initial burden to show prima facie entitlement to summary judgment (see CPLR 3212 [b]; Frees v Frank & Walter Eberhart L.P. No.l, 71 AD3d 491 [2010]), inasmuch as it did not offer competent proof that it was engaged in the business or trade of leasing or renting motor vehicles (including the vehicle driven by the individual defendant), as would entitle it to immunity from vicarious liability for injury caused by the individual defendant (see 49 USC § 30106 [Graves Amendment]; cf. Ballatore v HUB Truck Rental Corp., 83 AD3d 978 [2011]). DCFS Trust also failed to present competent proof that the individual defendant was not its employee (see generally Gogos v Modell’s Sporting Goods, Inc., 87 [2011]). The testimony of the president of defendant Gilad Realty, the company that rented the vehicle from DCFS Trust, is insufficient to establish DCFS Trust’s business or trade or its employee roster. Concur — Tom, J.R, Saxe, Sweeny, Richter and Manzanet-Daniels, JJ.