Opinion
2011-11-22
Joseph J. CASSIDY, Plaintiff–Respondent, v. DCFS TRUST, Defendant–Appellant,Gilad Realty, Inc., et al., Defendants.
Arnold S. Kronick, White Plains, for appellant. Scott Baron & Associates, P.C., Howard Beach (Michael Szechter of counsel), for respondent.
Arnold S. Kronick, White Plains, for appellant. Scott Baron & Associates, P.C., Howard Beach (Michael Szechter of counsel), for respondent.
TOM, J.P., SAXE, SWEENY, RICHTER, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered January 18, 2011, which, to the extent appealed from as limited by the briefs, denied that branch of defendants DCFS Trust and Gilad Realty, Inc.'s motion for summary judgment dismissing the complaint against DCFS Trust, unanimously affirmed, without costs.
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.1, 71 A.D.3d 491, 896 N.Y.S.2d 71 [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 A.D.3d 978, 922 N.Y.S.2d 180 [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 A.D.3d 248, 253, 926 N.Y.S.2d 53 [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.