Opinion
7761/2006.
Decided April 7, 2008.
V.W. Credit Leasing, Ltd., Joseph McGovern Esq. and John Morio Esq., Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York, NY, for Defendant.
Stuart M. Risoff Esq., Garden City, NY, for Plaintiff.
Plaintiff sues to recover damages for personal injuries sustained July 9, 2005, when he was operating a motor vehicle that collided with a motor vehicle owned by defendant V.W. Credit Leasing, Ltd., and operated by defendant Malavet in Bronx County. V.W. Credit Leasing has moved for summary judgment dismissing the complaint on the ground that, under 49 U.S.C. § 30106, V.W. Credit Leasing was not an owner of the vehicle Malavet was operating that was vicariously liable for her negligence. C.P.L.R. § 3212(b). For the reasons explained below, the court denies defendant's motion.
The motion for summary judgment claims that V.W. Credit Leasing is in the business of leasing motor vehicles and was the lessor the vehicle Malavet was operating July 9, 2005, leased to her under a written lease. Under those circumstances, 49 U.S.C. § 30106 provides that the lessor is not financially responsible for the negligent operation of the leased vehicle, due to the operator's negligence and absent the lessor's own negligence. For this federal law to apply here, V.W. Credit Leasing, having moved for summary judgment, thus bears the burden to establish that V.W. Credit Leasing, as of July 9, 2005, was the lessor of the vehicle that collided with plaintiff's vehicle. The current motion, however, is unsupported by admissible evidence that V.W. Credit Leasing was the lessor of that vehicle.
II. THE ASSIGNMENT
V.W. Credit Leasing's risk management analyst, John Dulka, admits that Malavet leased the vehicle from Town Motor Cars Corp. If V.W. Credit Leasing seeks to claim entitlement to any defenses Town Motor Cars had as a lessor under federal law, V.W. Credit Leasing obviously must show it was the assignee of that lease to Malavet, as V.W. Credit Leasing stands in no better position than the assignor and, as assignee, would have only the rights, claims, and defenses that the assignor had. Matter of International Ribbon Mills, 36 NY2d 121, 126 (1975); Trisingh Enters. v. Kessler, 249 AD2d 45, 46 (1st Dep't 1998); Federal Fin. Co. v. Levine, 248 AD2d 25, 28 (2d Dep't 1998). Although Dulka attests that Town Motor Cars assigned its lease to V.W. Credit Leasing, he nowhere indicates that any such assignment took effect before July 9, 2005.
For V.W. Credit Leasing to establish through admissible evidence, moreover, that V.W. Credit Leasing was the assignee of the lease as of July 9, 2005, V.W. Credit Leasing must present, in admissible form, Town Motor Car's assignment of the lease to V.W. Credit Leasing. C.P.L.R. § 3212(b); Rukaj v. Roth, 237 AD2d 503 (2d Dep't 1997); Columbus Natl. Leasing Corp. v. Perkin-Elmer Corp., 177 AD2d 1035, 1036 (4th Dep't 1991); Shaw, Licitra, Eisenberg, Esernio Schwartz v. Friedman, 170 AD2d 1048, 1049 (4th Dep't 1991); BKS Assocs. v. Kenny, 151 AD2d 535 (2d Dep't 1989). See, e.g., Colbourn v. ISS Intl. Serv. Sys., 304 AD2d 369, 370 (1st Dep't 2003). An assignment is a contract, which is ineffective without a signature, which in turn must be attested to. Acevedo v. Audubon Mgt., 280 AD2d 91, 95 (1st Dep't 2001); Fields v. S W Realty Assoc., 301 AD2d 625 (2d Dep't 2003).
Nowhere does V.W. Credit Leasing present an executed assignment contract, let alone any authentication of such a contract. Without the assignment contract itself, any recitation of the assignment's terms through Dulka's affidavit or other documents is rank hearsay and contrary to the best evidence rule. People v. Joseph, 86 NY2d 565, 570 (1995); Schozer v. William Penn Life Ins. Co. of NY, 84 NY2d 639, 643 (1994); NW Liquidating Corp. v. Helmsley-Spear, Inc., 248 AD2d 304, 305 (1st Dep't 1998); Schiffren v. Kramer, 225 AD2d 757, 758 (2d Dep't 1996). The absence of a contract assigning the lease between Town Motor Car and Malavet thus prevents any finding that V.W. Credit Leasing was the lessor under that lease. Colbourn v. ISS Intl. Serv. Sys., 304 AD2d 369; Allstate Ins. Co. v. Ganesh , 8 Misc 3d 922 , 924 (Sup.Ct. Bronx Co. 2005).
Of course if V.W. Credit Leasing had no connection to the vehicle, V.W. Credit Leasing would not be liable for Malavet's operation of the vehicle. Upon V.W. Credit Leasing's motion for summary judgment, however, V.W. Credit Leasing bears the burden, in the first instance, to establish, through admissible evidence, that V.W. Credit Leasing was not a party "having property in or title to" the vehicle, NY Veh. Traf. Law (VTL) § 128, or otherwise not financially responsible for its operation and its operator's acts. VTL § 388(1). See C.P.L.R. § 3212(b); JMD Holding Corp. v. Congress Fin. Corp. , 4 NY3d 373 , 384 (2005); Forrest v. Jewish Guild for the Blind , 3 NY3d 295 , 315 (2004); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003).
Here, V.W. Credit Leasing not only fails to meet its burden, but affirmatively admits in a verified answer, presented in support the summary judgment motion, that V.W. Credit Leasing held title to the vehicle Malavet was operating. In sum, no evidence establishes that V.W. Credit Leasing was not the owner; instead, this defendant admits that it was.
III. THE LEASE
Since Dulka, V.W. Credit Leasing's risk management analyst, admits that Malavet leased the vehicle from Town Motor Cars, he likely could not, and in fact he does not, authenticate this lease either. Assuming V.W. Credit Leasing established it was assigned the lease, if the assignee is to rely on this contract for its truth, a witness with personal knowledge must identify the lease, authenticate it, by attesting to its execution, and lay the foundation for the document's admissibility. C.P.L.R. § 4518(a); People v. Mertz, 68 NY2d 136, 147 (1986); Zuluaga v. P.P.C. Constr., LLC , 45 AD3d 479, 480 (1st Dep't 2007); Vento v. City of New York , 25 AD3d 329 , 330 (1st Dep't 2006); Holliday v. Hudson Armored Car Courier Serv., 301 AD2d 392, 396 (1st Dep't 2003). See People v. Rawlins , 37 AD3d 183, 184 (1st Dep't 2007); Kupferle v. Deidra Transp., 300 AD2d 192 (1st Dep't 2002); Acevedo v. Audubon Mgt., 280 AD2d at 95; Fields v. S W Realty Assoc., 301 AD2d 625. Simply placing a copy of a contract in V.W. Credit Leasing's files does not transform it into an admissible business record of either V.W. Credit Leasing or Town Motor Cars.
A. The Lease Is Neither Hearsay Nor a Record of a Transaction.
While a business record is an exception to the rule against hearsay evidence, a contract is neither a hearsay document to begin with, nor a business record of the parties' transaction. A contract is the very agreement or transaction at issue, rather than an account of it. Any evidence, documentary or testimonial, offered to establish that an agreement or other statement was made is not hearsay. People v. Clark, 95 NY2d 773, 775 (2000); People v. Davis, 58 NY2d 1102, 1103 (1983); Holliday v. Hudson Armored Car Courier Serv., 301 AD2d at 395 n. 2; People v. Cook, 115 AD2d 240 (4th Dep't 1985). Although the lease is offered for its contents, those contents are an agreement as to what will occur, not an account of what occurred. Where an agreement or other statement is not offered as an account of an event or transaction, it is neither hearsay nor a record. Giardino v. Beranbaum, 279 AD2d 282 (1st Dep't 2001); People v. DeJesus, 272 AD2d 61, 62 (1st Dep't 2000); DeLuca v. Ricci, 194 AD2d 457, 458 (1st Dep't 1993).
The lease does not become a business record admissible in evidence, moreover, merely by retention in the regular course of business. People v. Cratsley, 86 NY2d 81, 90 (1995); Lodato v. Greyhawk N. Am., LLC, 39 AD3d 400, 402 (2d Dep't 2007); People v. Rogers , 8 AD3d 888 , 891 (3d Dep't 2004); People v. Surdis, 275 AD2d 553, 554-55 (3d Dep't 2000). See People v. Pierre, 157 AD2d 750, 751 (2d Dep't 1990). A business record must have been recorded by a person under a business duty to make the record in the ordinary course of business. Holliday v. Hudson Armored Car Courier Serv., 301 AD2d at 396; Kupferle v. Deidra Transp., 300 AD2d 192; Regent Corp. v. Bangladesh, Ltd., 253 AD2d 134, 139 (1st Dep't 1999); People v. Morrow, 204 AD2d 356, 357 (2d Dep't 1994). See Cover v. Cohen, 61 NY2d 261, 274 (1984); People v. Cruz, 283 AD2d 295 (1st Dep't 2001); Liguori v. City of New York, 250 AD2d 738, 739 (2d Dep't 1998); Hatton v. Gassler, 219 AD2d 697 (2d Dep't 1995).
B. Authentication Is a Requirement Separate from a Foundation for an Exception to the Rule Against Hearsay.
Most importantly, because the lease is a signed document offered to bind the signing party, whether the lease is non-hearsay, or a business record, or another exception to the rule against hearsay, the document still must be authenticated. Authentication is a requirement separate from a foundation for an exception to the rule against hearsay. Holding v. Feinberg, 182 Misc 2d 180, 181 (App. Term 1st Dep't 1999), aff'd, 276 AD2d 423 (1st Dep't 2000); Columbia County Support Collection Unit v. Demers , 29 AD3d 1092 , 1093 (3d Dep't 2006); People v. Scott, 294 AD2d 661, 663 (3d Dep't 2002); People v. Boswell, 167 AD2d 928 (4th Dep't 1990). Thus, even if V.W. Credit Leasing, the proponent of the lease, laid the foundation for the document as a business record or other exception to the rule against hearsay, V.W. Credit Leasing still must satisfy the authentication requirement. Freeman v. Kirkland, 184 AD2d 331, 332 (1st Dep't 1992); Fanelli v. Lorenzo, 187 AD2d 1004, 1005 (4th Dep't 1992); People v. Winley, 105 Misc 2d 474, 481 (Sup.Ct. NY Co. 1980). If a party does not authenticate the lease, it is inadmissible. Bermudez v. Ruiz, 185 AD2d 212, 214 (1st Dep't 1992); People v. Michallow, 201 AD2d 915, 916-17 (4th Dep't 1994); Wilson v. Bodian, 130 AD2d 221, 233 (2d Dep't 1987); People v. Winley, 105 Misc 2d at 481.
Neither Dulka nor any other witness attests to observing execution of the lease or to familiarity with any signature on the lease so as to identify the signature as belonging to Malavet or Town Motor Cars. People v. Pierre , 41 AD3d 289, 291 (1st Dep't 2007); Acevedo v. Audubon Mgt., 280 AD2d at 95; People v. Bryant , 12 AD3d 1077 , 1079 (4th Dep't 2004); Fields v. S W Realty Assoc., 301 AD2d 625. Nor does any party offer another authenticated signature by a party to the lease for the factfinder to compare with a signature on the lease, C.P.L.R. § 4536; Odum v. Goord, 271 AD2d 723, 724 (3d Dep't 2000); Terra v. Department of Health, 199 AD2d 577, 578-79 (3d Dep't 1993); People v. Murray, 122 AD2d 81, 82 (2d Dep't 1986); see People v. Michallow, 201 AD2d at 916; People v. Clark, 122 AD2d 389, 390-91 (3d Dep't 1986), or offer circumstantial evidence authenticating the lease. People v. Pierre, 41 AD3d at 291; People v. Bryant, 12 AD3d at 1079; People v. Thomas, 272 AD2d 892, 893 (4th Dep't 2000); People v. Jean-Louis, 272 AD2d 626, 627 (2d Dep't 2000); People v. Murray, 122 AD2d at 82.
Since defendants have not offered an authenticated, admissible lease to Malavet, this failure further precludes V.W. Credit Leasing from establishing that, as of July 9, 2005, it was the lessor of the vehicle that collided with plaintiff's vehicle. Washington v. Montefiore Med. Ctr. , 9 AD3d 271 , 272 (1st Dep't 2004); Colbourn v. ISS Intl. Serv. Sys., 304 AD2d at 369-70; Allstate Ins. Co. v. Ganesh, 8 Misc 3d at 923. Without an authenticated and admissible lease, any recitation of the lease's terms through affidavits or other documents, like the assignment, is hearsay and contrary to the best evidence rule. People v. Joseph, 86 NY2d at 570; Schozer v. William Penn Life Ins. Co. of NY, 84 NY2d at 643; NW Liquidating Corp. v. Helmsley-Spear, Inc., 248 AD2d at 305; Schiffren v. Kramer, 225 AD2d at 758.
IV. CONCLUSION
In sum, because V.W. Credit Leasing has not made its necessary threshold showing, the absence of the lease and its assignment in admissible form prevents a determination that 49 U.S.C. § 30106 exempts V.W. Credit Leasing, as the lessor, from financial responsibility for the negligent operation of the leased vehicle. Washington v. Montefiore Med. Ctr., 9 AD3d at 272; Colbourn v. ISS Intl. Serv. Sys., 304 AD2d 369; Allstate Ins. Co. v. Ganesh, 8 Misc 3d at 923-24. Having thus failed to show that V.W. Credit Leasing was a lessor subject to federal law, V.W. Credit Leasing fails to eliminate all material factual issues as to whether it is in fact the owner of the vehicle financially responsible for the vehicle's operation and the operator's acts under New York law. VTL § 388(1). Therefore the court denies V.W. Credit Leasing's motion for summary judgment. C.P.L.R. § 3212(b).