Sherpa v. VW Credit Leasing Ltd.

2024 NY Slip Op 33542(U)

• Court: New York Supreme Court, New York County
• Decided: October 7, 2024
• Docket: Index No. 153194/2022
• Status: Unpublished

Opinion

Sherpa v VW Credit Leasing Ltd. 2024 NY Slip Op 33542(U) October 7, 2024 Supreme Court, New York County Docket Number: Index No. 153194/2022 Judge: James G. Clynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153194/2022 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/07/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CL YNES PART 22M Justice ---- ----- -- -------- ------ --- --------------- ------ --- ---------------- -------------X INDEX NO. 153194/2022 LHAKPA SHERPA, MOTION DATE 05/13/2024 Plaintiff, MOTION SEQ. NO. 001 - V -

YW CREDIT LEASING LTD., RICHARD APPLETON DOW, DECISION+ ORDER ON JANE DOE MOTION Defendants.

--------------------. --. ---·----- --------------- --- -------- ----------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 14, 15, 16. 17. 18, 19. 20, 21, 22,23,24,25,26,27,29, 30,31 were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents and following oral argument, it is ordered that Defendants'

motion for an Order pursuant to CPLR 321 (a) (7) and 49 USC 30106 (c) (the Graves Amendment)

dismissing the Complaint against Defendant VW Credit Leasing Ltd is decided as follows:

Plaintiff seeks recovery for injuries allegedly sustained as a result of a May 16, 2019 motor

vehicle accident between a vehicle owned and operated by Plaintiff and a vehicle owned by

Defendant VW, operated by Defendant Richard Appleton Dow, and leased by Defendant Jane

Doe.

Defendant VW Credit Leasing Ltd moves to dismiss Plaintiffs Complaint on the grounds . -·

that the Graves Amendment precludes liability against the leasing company in a motor vehicle

accident. Defendant VW Credit Leasing Ltd contends that Plaintiffs action against it is based

solely on the theory that it is vicariously liable to plaintiff for damages caused by the operator of

its leased vehicle, Defendant Richard Appleton Dow. Defendants contend that the submissions of

the rental/lease agreement between Defendant and its lessee and the affidavit of Mr. Richard

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Vassar establish Defendant VW Credit Leasing Ltd is in the business of leasing motor vehicles.

Defendants further contend that Defendant Richard Appleton Dow was not an agent or an

employee of VW Credit Leasing Ltd and therefore Plaintiff cannot maintain its action of vicarious

liability against Defendant VW Credit Leasing Ltd. As such, Defendants contend that Defendant

VW Credit Leasing Ltd cannot be held vicariously liable for the negligent acts of its renter, lessee,

permissive driver and operator.

On a motion to dismiss brought under CPLR 3211 (a) (7), the court must "accept the facts

as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable

inference, and determine only whether the facts as alleged fit within any cognizable legal theory"

(Leon v Martinez, 84 NY2d 83 [1994]). Ambiguous allegations must be resolved in the plaintiffs

favor (JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759 [2015]). "The motion

must be denied if from the pleadings' four comers factual allegations are discerned which taken

together manifest any cause of action cognizable at law" (51 I W. 232nd Owners Corp. v Jennifer

Realty Co., 98 NY2d 144 [2002]). However, when evidence is submitted on a motion to dismiss,

the Court must look to whether the plaintiff has a cause of action, rather than whether it is pleaded

(Braun v Lewis, 99 AD3d 574,575 [1st Dept 2012]).

Under the Graves Amendment, the owner of a leased or rented motor vehicle cannot be

held vicariously liable for harm to persons or property that results or arises out of the use,

operation, or possession of the vehicle during the period of the rental or lease, if - ( 1) the owner

(or an affiliate of the owner) is engaged in the trade or business ofrenting or leasing motor vehicles;

and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of

the owner) (Steigelman v Transervice Lease Corp., 210 AD3d 515 [l st Dept 2022]). A party

seeking dismissal based on the Graves Amendment has the burden of establishing prima facie that

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they are engaged in the business of renting or leasing motor vehicles, that they leased the vehicle

involved in the subject accident and that said accident occurred during the period of the lease

(Mus!ur v Hall, 214 AD3d 77, 81 [ I st Dept 2023 ]). If the plaintiff has alleged negligent

maintenance, the movant must also establish there was no negligence on their part, as a direct

negligence claim is not barred by the Graves Amendment (Collazo v MFA-New York City Tr., 74

AD3d 642 [1st Dept 20 I OJ).

In support of their motion, Defendants submit a copy of the title and registration with the

primary owner listed as Defendant VW Credit Leasing Ltd, an affidavit of Richard Vassar, the

General Risk Manager for VW Credit Leasing Ltd and a copy of the lease. In his affidavit, Vassar

avers that VW Credit Leasing Ltd is in the business of leasing motor vehicles pursuant to long

term written leases. He attaches a lease agreement to his affidavit and avers that the lease

agreement is dated January 24, 2019. is for a term of 39 months, and is kept in the ordinary course

of business by VW Credit Leasing Ltd. He further avers that Harriet B. Flanigan entered into a

lease agreement with Jack Daniels Audi Warwick which was simultaneously assigned by Audi

Warwick to VW Credit Leasing Ltd. with all rights, title, and interest for and to the vehicle and

the lease. Vassar avers that on the date of the accident alleged in this action, May I 6, 2019, Harriet

B. Flanigan was not the employee, servant, or agent ofVW Credit Leasing Ltd and that Harriet B.

Flanigan was not acting on the instruction, either expressed or implied of VW Credit Leasing Ltd.

on the alleged date ofloss.

The Court notes that the purported lease attached to Defendants' motion papers is illegible

(see Tello v Upadhyaya, 215 AD3d 778 [2d Dept 2023] where the court found that Defendant's

evidentiary submissions, namely an illegible lease and no assignment documentation, was

insufficient to establish Graves Amendment protections). The purported assignment of the lease

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NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 10/07/2024

to Defendant VW Credit Leasing, Ltd was not submitted. Vassar gave no details concerning the

purported assignment and did not state that he had personal knowledge of the transactions at issue.

Thus, Defendants failed to establish that Defendant VW Credit Leasing Ltd is shielded by the

Graves Amendment. Because movant Defendants have failed to make the required showing, the

motion is denied and the Court need not consider the opposing papers (see Winegrad v New York

University Medical Center, 64 NY2d 851, 853 [I 985]). Accordingly, it is

ORDERED that the motion by Defendants pursuant to CPLR 3211 (a) (7) to dismiss the

Complaint against Defendant VW Credit Leasing Ltd pursuant to the Graves Amendment (49 USC

30106) is denied; and it is further

ORDERED that within 30 days of entry, Plaintiff shall serve a copy of this Decision and

Order upon Defendants with Notice of Entry.

This constitutes the Decision and Order of the Court.

10/7/2024 DATE JAMES G. CL YNES, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRA:'IITED 0 DENIED GRA:',ITED IN PART □ OTHER APPLIC\TIO;\: SETTLE ORDER Sl"B'\IIT ORDER

CHECK u· APPROPRIATE: 1:-.CLUDES TRANSFER/REASSIGN trnt·cuRY APPOINTMENT □ REFERE:,,,/CE

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