Robert K. Monette et al., Appellants,v.Christina L. Trummer, et al., Defendants, Jim Ball Pontiac-Buick-GMC, Inc., Respondent.BriefN.Y.October 8, 2013To be Argued by: CHRISTOPHER R. TURNER (Time Requested: 10 Minutes) Niagara County Clerk’s Index No. 75875 New York Supreme Court Appellate Division—Fourth Department ROBERT K. MONETTE and SHARON M. MONETTE, Plaintiffs-Respondents, – against – CHRISTINA L. TRUMMER, DAVID LEEDERMAN, JESSE L. BALL, Defendants, JIM BALL PONTIAC-BUICK-GMC, INC. and JIM BALL HOLDINGS, Defendants-Appellants. BRIEF FOR DEFENDANTS-APPELLANTS LAW OFFICES OF DESTIN C. SANTACROSE Attorneys for Defendants-Appellants Olympic Towers, Suite 345 300 Pearl Street Buffalo, New York 14202 (716) 852-6923 Of Counsel: Christopher R. Turner, Esq. TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTIONS PRESENTED STATEMENT OF FACTS ARGUMENT POINT I POINT II CONCLUSION Defendant-Appellant is Entitled to Summary Judgment on Issue of Ownership Defendant-Appellant Is Entitled to Summary Judgment with Regard to Negligent Entrustment. 3 4 5 6 10 11 2 TABLE OF AUTHORITIES 8B N.Y. Jur. 2d Automobiles § 1154 10 49 USC §30106(a) 7,9 Vehicle and Traffic Law § 128 7 Vehicle and Traffic Law §388 passim Zuckerman v. City of New York, 49 N.Y.2d 557,404 N.E.2d 718 (1980) 6 Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131 (1974) 6 Progressive Halcyon Ins. Co. v. Giacometti, 72 A.D.3d 1503,899 N.Y.S.2d 783 (4th Dep't 2010) 8 Simon v. El Service Corp., 85 A.D.2d 556,452 N.Y.S.2d 407 (1st Dep't 1981) 8 La Plant v. Cutlip, 258 A.D.2d 769, 685 N.Y.S.2d 840 (3d Dep't 1999) 8 Pili v. Matson Motors, Inc., 83 A.D.2d 324, 590 N.Y.S.2d 961 (4th Dep't 1992) 9,10 Bennett v. Geblein, 71 A.D.2d 96, 421 N.Y.S.2d 487 (4th Dep't 1979) 10 Cook v. Schapiro, 58 A.D.3d 664, 871 N.Y.S.2d 714 (2d Dept 2009) 10, 11 3 QUESTION PRESENTED 1. Is Defendant-Appellant, JIM BALL PONTIAC-BUICK-GMC, INC., entitled to summary judgment on the issue of ownership of the vehicle? ANSWER: Yes. There can be no vicarious liability under Vehicle and Traffic Law §388 unless Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., is the owner or the vehicle. The lower court already ruled as a matter of law that Jesse Ball is the owner of the personal vehicle in question. No testimony or evidence produced to the court demonstrates that Defendant-Appellant owned the vehicle as ownership is defined under the law. Additionally, even if Defendant- Appellant could be found to have owned the vehicle, the Graves Amendment prevents a finding of vicarious liability. QUESTION PRESENTED 2. Is Defendant-Appellant, JIM BALL PONTIAC-BUICK-GMC, INC., entitled to summary judgment on the issue of negligent entrustment? ANSWER: Yes. Because Plaintiff-respondent did not raise an issue of negligent entrustment in its papers, such an issue would be precluded from review. Even if the issue were not precluded, no evidence exists to show Defendant-Appellant possessed special knowledge concerning a characteristic or condition peculiar to either Leederrnan or Trummer that rendered their use of the car unreasonably dangerous. 4 STATEMENT OF FACTS Plaintiff seeks recovery for injuries allegedly sustained as a result of a motor vehicle accident on February 5, 2009, on Route 16 in Holland, New York. On February 5, 2009, Co-defendant Leederman owned a vehicle which he brought to Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., for repair. While the vehicle was being repaired, Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., loaned the personal vehicle of Co-defendant Jesse Ball to Mr. Leederman. According to the "rental agreement" Mr. Leederman signed that day for the vehicle, the vehicle was for Mr. Leederman's use for that one day and was to be returned the next day. That evening Mr. Leederman allowed Co-defendant, Christina Trummer, to drive the vehicle. Ms. Trummer was involved in a collision with Plaintiff. Plaintiff alleged that defendants were liable under a theory of negligent entrustment of a vehicle, vicarious liability as the owner of the vehicle involved in the accident, and failure to ascertain ifthe operator was a competent driver. Additional claims of negligence are alleged related to the actual operation of the vehicle. The lower court granted summary judgment in favor of the Plaintiff against Defendants Christina L. Trummer and Jesse L. Ball regarding liability. By order dated December 17,2010, the lower court granted summary judgment to co- defendant Jim Ball Holdings, LLC on the grounds it was not liable as a matter oflaw to the plaintiff because it was not the owner ofthe vehicle involved in the collision and was not otherwise involved at all in the events leading to the loan of the vehicle to Co-defendant Leederman. The lower court also found that, as a matter oflaw, Co-defendant Jesse Ball was the owner of the vehicle involved in the collision and was therefore vicariously liable under New York Vehicle and Traffic Law §388 for the negligence ofthe vehicle's operator, Christine 5 Trummer. The lower court found Co-defendant Leederman was not the owner or occupant of the vehicle, hence there could be no liability under New York's Vehicle and Traffic Law §388. The lower court denied without prejudice summary judgment in favor of Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., on the basis that additional discovery had to take place. Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., then renewed its motion for summary judgment, which was denied on August 2, 2011. That denial is now appealed. ARGUMENT In this case, Defendant-Appellant submits that they are entitled to summary judgment because they did not own the vehicle in question and because no evidence exist to show a question of negligent entrustment as held sua sponte by the lower Court. To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor and demonstrate that there are no questions of fact for a jury. Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980).While true that summary judgment is a drastic remedy, Courts should not "ferret out speculative issues 'to get the case to the jury.'" Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131 (1974). We submit that on these issues there are no questions for the jury on either question and, thus, Defendant-Appellant is entitled to summary judgement. POINT 1- Defendant-Appellant is entitled to summary judgment with regard to ownership and vicarious liability. Defendant-Appellant was entitled to summary judgment on the issue of ownership and vicarious liability for co-Defendant's negligence because co-Defendant Jesse Ball owned the vehicle in question. Defendant-Appellant was not the owner of the vehicle, as defined by law, and all evidence demonstrates that there is no question for a jury as to who owned the vehicle at 6 issue. Even assuming Defendant-Appellant could be deemed an owner ofthe vehicle in question, 49 USC §30106(a) would arguably prohibit a finding of vicarious liability. Under Vehicle and Traffic Law §388 and § 128, unless Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., is the owner ofthe vehicle in question, there can be no finding of vicarious liability in this case. "Ownership" is defined under Vehicle and Traffic Law §388(3) and §128. Vehicle and Traffic Law §388 (3) states in part: [ ... ] If a vehicle be sold under a contract of sale which reserves a security interest in the vehicle in favor of the vendor, such vendor or his assignee shall not, after delivery of such vehicle, be deemed an owner within the provisions of this section, but the vendee, or his assignee, receiving possession thereof, shall be deemed such owner notwithstanding the terms of such contract, until the vendor or his assignee shall retake possession of such vehicle. A secured party in whose favor there is a security interest in any vehicle out of his possession, shall not be deemed an owner within the provisions of this section. Vehicle and Traffic Law §128 states: A person, other than a lien holder, having the property in or title to a vehicle or vessel. The term includes a person entitled to the use and possession of a vehicle or vessel subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle or vessel having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days. The lower court has found as a matter of law that Jesse Ball is the owner of the vehicle. Record on Appeal (R.) at 232. The arrangement made between the parties did not involve a security interest in or any transfer of ownership or interest in the vehicle, and the arrangement was for a period ofless than 48 hours, while Leederman's vehicle was repaired. R. at 11-12. Additionally, Ms. Ball has previously testified that she owns the vehicle and that the title is solely in her name, and the testimony of Defendant-Appellant James Ball supports her testimony and no other evidence in the record contradicts these statements. R. at 213,246. Hence, for all ofthese 7 reasons, Defendant-Appellant cannot be considered an owner ofthe vehicle, within the meaning of the law, and thus cannot be held vicariously liable for the negligence of the driver. In spite of the relevant case law and statutes, Plaintiff-Respondent's has previously asserted that the mere fact that a arrangement existed or that Jesse Ball allowed Defendant- Appellant use is sufficient to create a security interest in a vehicle. R. at 293. As indicated in Progressive Halcyon Ins. Co. v. Giacometti, 72 AD.3d 1503,899 N.Y.S.2d 783 (4th Dep't 2010), only a person with exclusive use for more than 30 days can be deemed an "owner." The First Department has previously held in a Motor vehicle case that no basis existed to impose vicarious liability on lessee of a taxi pursuant to VTL § 388 where lessee was at most a lessee for about 12 hours and thus could not be deemed an owner without exclusive use of vehicle for period greater than 30 days. See Simon v. El Service Corp., 85 AD.2d 556, 452 N.Y.S.2d 407 (lst Dep't 1981); See also La Plant v. Cutlip, 258 AD.2d 769, 685 N.Y.S.2d 840 (3d Dep't 1999) (lessee of tractor-trailer was not owner of tractor-trailer, and thus was not vicariously liable for negligence of driver in connection with accident, where lessee did not have exclusive control of tractor-trailer for over 30 days prior to the accident, in view of rental of tractor-trailer to other companies within that period). In this case, because the statute requires that for a lesee, bailee, or person otherwise entitled to use and possession have " ... the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days," Defendant-Appellant cannot be deemed an owner within the meaning of the statute as the vehicle was for Defendant-Appellant's use to loan to Mr. Leederrnan for a period ofless than 48 hours and did not exceed that period of time. R. at 268-278. If somehow the mere arrangement was enough to hold Defendant-Appellant liable for the negligence of Trummer, despite not holding title or interest in the vehicle, then arguably the 8 same law would hold Leedennan in the case whom the court let out of the case by virtue of the applicable Vehicle and Traffic Law. R. at 12. Even if somehow Defendant-Appellant could be deemed an owner as defined by the statutes, if the vehicle in question was owned and "rented" through Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., as the Plaintiff-Respondent and lower court have previously suggested, the Graves Amendment should preclude a finding of liability in this case. See 49 USC §30106(a). Thus, if Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., owned the vehicle and somehow "rented or leased" the vehicle in furtherance of their business as Co-defendant Leedennan has stated, under the Graves Amendment, it cannot be liable. Previously this Court has indicated that where an automobile business lends a vehicle it owns as a temporary replacement for the customer's automobile during such time as the vehicle is being repaired or serviced by the business and where testimony differs as to whether the loan might be construed as a gratuitous bailment or a business transaction, such an instance may create a question of fact as to whether the Graves Amendment is applicable. See Fili v. Matson Motors, Inc., 83 A.D.2d 324, 590 N.Y.S.2d 961 (4th Dep't 1992). A number of distinguishable factors differ this case from Fila. First, because Plaintiff-Respondent has stated in prior motion papers that the arrangement between Leedennan and Appellant was in furtherance of the business and part of the business, in order to impute ownership and testimony, they appear to have conceded that it was a business arrangement. Rat 298-299. Second, a clear rental agreement indicates that it was a business arrangement and all testimony by the co-Defendant indicate that the car rental was for the purpose of furthering the business arrangement. R. at 290- 313. It is notable that Defendant-Appellant originally sent Mr. Ledennan to Enterprise for the purpose of obtaining a renting him a vehicle, which they were to pay for, and that they only 9 "rented" him a vehicle when he refused to provide Enterprise with sufficient documentation. R. at 215. If it is the case that such an arrangement imputes ownership in further ofthe business as contended by Plaintiff-Respondent and that the rental agreement means that Leederman was renting the vehicle from Defendant-Appellant, under this Court's holding in Fila, the Graves Amendment should apply and thus relieve Defendant-Appellant of vicarious liability. Because Defendant-Appellant Jim Ball Pontiac-Buick-GMC, Inc., was not the owner of the vehicle within the meaning of the applicable law, Defendant-Appellant cannot be imputed with vicarious liability pursuant to New York Vehicle and Traffic Law §388. Given that the vehicle in question was used to further a business arrangement, ifthe vehicle was a rental, the Graves Amendment clearly applies. POINT 11- Defendant-Appellant is entitled to summary judgment with regard to negligent entrustment. Generally, a person in an auto accident is not liable for injuries resulting from its negligent operation ifhe was neither the owner nor the operator ofthe vehicle-except in an issue of negligent entrustment. Bennett v. Geblein, 71 A.D.2d 96, 421 N'y.S.2d 487 (4th Dep't 1979). Notably, the lower court indicated that Plaintiff-Respondent had raised a question of fact regarding an issue of negligent entrustment, despite the fact that the responding papers fail to discuss such an issue or provide any evidence in support of such a contention. R. at 12, 290-330. Negligent entrustment may be found where a party who has control over a motor vehicle may be held liable for injuries to third persons for entrusting it to a person who the person knew, or in the exercise of reasonable care should have known, was not competent to operate it safely. See Cook v. Schapiro, 58 A.D.3d 664,871 N.Y.S.2d 714 (2d Dept 2009); 8B N.Y. Jur. 2d Automobiles § 1154. To raise a question of fact on this issue would require Plaintiff-Respondent to demonstrate that "the defendant [had] some special knowledge concerning a characteristic or 10 condition peculiar to the person to whom a particular chattel is given which renders that person's use of the chattel unreasonably dangerous .. ~'Cook at A.D.3d 666, N.Y.S.2d 716. Under the applicable law, a dealership is under no duty to assess the ability or mental or physical fitness of a customer to operate a motor vehicle that is beyond the ken of the average salesperson. Id. Indeed, where a defendant car dealership has no knowledge of any problem with the driver of the vehicle in question, that dealership is entitled to summary judgment. Id. Notably, because the record indicates that Defendant-Appellant possessed no special knowledge concerning a characteristic or condition peculiar to either Leederman or Trummer that rendered their use of the car unreasonably dangerous, no viable cause of action exists alleging negligent entrustment. All testimony supports a contention that both Leederman and Trummer possessed no conditions or characteristic that should have given Defendant-Appellant pause with regard to their use of a vehicle. See R. at 258-289. Indeed, in this case, because Defendant-Appellant had no prior knowledge of Trummer or knowledge that she would have access to the vehicle, Defendant-Appellant were entitled to summary judgment on the issue, had it been raised. CONCLUSION For the foregoing reasons, and in accord with the authorities cited and discussed herein, Defendant respectfully requests that this Court issue an Order reversing the decision of the lower Court and grant Jim Ball Pontiac-Buick-GMC, Inc.'s motion for summary judgment declaring it it. DATED: July 9,2012 Buffalo Christopher R. Turner, Esq. 11