Khan v. Vasilenko

210 N.Y.S.3d 464

Mumraiz KHAN, appellant,

v.Maxim VASILENKO, defendant, CAB East, LLC, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 9, 2024

May 1, 2024

William Pager, Brooklyn, NY, for appellant.

Phillips Lytle LLP, Buffalo, NY (Craig A. Leslie, Jacob S. Sonner, and Steven B. Salcedo of counsel), for respondents.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated October 7, 2022. The order granted the motion of the defendants CAB East, LLC, and HTD Leasing, LLC, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

On September 15, 2021, at or near the intersection of Bay Parkway and Bath Avenue in Brooklyn, the plaintiff allegedly sustained personal injuries when he was struck by a motor vehicle operated by the defendant Maxim Vasilenko and owned by the defendants CAB East, LLC (hereinafter CAB), and HTD Leasing, LLC (hereinafter HTD). Following the commencement of this action, CAB and HTD (hereinafter together the moving defendants) moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The moving defendants sought dismissal of the complaint insofar as asserted against CAB on the ground that CAB was entitled to the protection of the Graves Amendment (49 USC § 30106) and, therefore, could not be held vicariously liable for Vasilenko’s allegedly negligent operation of the leased vehicle. Further, the moving defendants sought dismissal of the complaint insofar as asserted against HTD on the ground that HTD, as an out-of-possession lienholder of the subject vehicle, could not be held vicariously liable under Vehicle and Traffic Law § 388. The Supreme Court granted the moving defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the moving defendants, and the plaintiff appeals.

[1] As the plaintiff correctly contends, the Supreme Court, in effect, treated the moving defendants’ motion pursuant to CPLR 3211(a)(7) as one for summary judgment without providing the parties with any notice that it intended to do so (see id. § 3211[c]; Velez v. Captain Luna’s Mar., 74 A.D.3d 1191, 1191, 904 N.Y.S.2d 474; Sta-Brite Servs., Inc. v. Sutton, 17 A.D.3d 570, 570–571, 794 N.Y.S.2d 70). Further, the record does not establish that the parties deliberately charted a summary judgment course (see Hutchison v. Kings County Hosp. Ctr., 139 A.D.3d 673, 675, 32 N.Y.S.3d 210; Sta–Brite Servs., Inc. v. Sutton, 17 A.D.3d at 570–571, 794 N.Y.S.2d 70). Despite the court’s failure to apply the correct standard, and since the parties have briefed the merits of the moving defendants’ motion on appeal, this Court will, in the interest of judicial economy, determine the motion under the standards applicable to a motion to dismiss pursuant to CPLR 3211(a)(7) (see Christ the Rock World Restoration Church Intl., Inc. v. Evangelical Christian Credit Union, 153 A.D.3d 1226, 1228–1229, 62 N.Y.S.3d 396; Fedele v. Qualified Personal Residence Trust of Doris Rosen Margett, 137 A.D.3d 965, 967, 27 N.Y.S.3d 613; Garner v. China Natural Gas, Inc., 71 A.D.3d 825, 826, 898 N.Y.S.2d 49).

[2] On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Buchanan v. Law Offs. of Sheldon E. Green, P.C., 215 A.D.3d 790, 791, 187 N.Y.S.3d 293). Where evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Buchanan v. Law Offs. of Sheldon E. Green, P.C., 215 A.D.3d at 791, 187 N.Y.S.3d 293).

[3] Under the Graves Amendment, in order for recovery to be barred, the owner, or an affiliate of the owner, must be engaged in the trade or business of renting or leasing motor vehicles, and the owner, or its affiliate, must not be negligent (see Cukoviq v. Iftikhar, 169 A.D.3d 766, 767, 93 N.Y.S.3d 710; Antoine v. Kalandrishvili, 150 A.D.3d 941, 942, 56 N.Y.S.3d 142; Aviaev v. Nissan Infiniti LT, 150 A.D.3d 807, 808, 55 N.Y.S.3d 297).

[4] Here, the moving defendants established that CAB was entitled to the protection of the Graves Amendment through the affidavit of an employee of an affiliate and the lease agreement for the subject vehicle. Contrary to the plaintiff’s contention, the employee’s out-of-state affidavit substantially conformed to the statutory requirements of this State, and, thus, the Supreme Court properly considered the affidavit in deciding the motion (see 21st Mtge. Corp. v. Rudman, 201 A.D.3d 618, 624–625, 161 N.Y.S.3d 257; Midfirst Bank v. Agho, 121 A.D.3d 343, 351, 991 N.Y.S.2d 623). Further, the employee had sufficient personal knowledge to authenticate the lease agreement, which was annexed to his affidavit (see Antoine v. Kalandrishvili, 150 A.D.3d at 942, 56 N.Y.S.3d 142; Burrell v. Barreiro, 83 A.D.3d 984, 985, 922 N.Y.S.2d 465). Through the employee’s affidavit and the lease agreement, the moving defendants showed that CAB...