Gerson v. Enterprise Rent-A-Car Co.

286 A.D.2d 475, 729 N.Y.S.2d 644, 2001 N.Y. App. Div. LEXIS 8245

Opinion

In an action to recover damages for personal injuries, the defendant Enterprise Rent-A-Car Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Thomas, J.), dated November 2, 2000, as denied its motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The appellant moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action on the ground that it was not the owner of the offending vehicle at the time of the subject motor vehicle accident (see, CPLR 3211 [a] [7]). The appellant’s motion papers failed to conclusively establish that it was not the owner of the offending vehicle (see, Rovello v Orofino Realty Co., 40 NY2d 633, 636; Albert v Solimon, 252 AD2d 139, affd 94 NY2d 771; Lopez v Ford Motor Credit Co., 238 AD2d 211). Therefore, the appellant’s motion to dismiss was properly denied. Bracken, P. J., Friedmann, Florio, H. Miller and Townes, JJ., concur.