Robert K. Monette et al., Appellants,v.Christina L. Trummer, et al., Defendants, Jim Ball Pontiac-Buick-GMC, Inc., Respondent.BriefN.Y.October 8, 2013 Destin C. Santacrose Richard S. Poveromo Cheryl A. Krzywicki Christopher R. Turner Elise L. Cassar Erin K. Skuce LAW OFFICES OF DESTIN C. SANTACROSE Employees of Liberty Mutual Group, Inc. The Electric Tower – Suite 403 535 Washington Street Buffalo, New York 14203 Telephone: (716) 852-6923 Fax: (716) 856-7417 (not for service of process) August 6, 2013 State of New York Court of Appeals Andrew W. Klien, Chief Clerk 20 Eagle Street Albany, NY 12207-1095 Re: Monette v. Trummer, et al. APL-2013-00131 Dear Mr. Klien: Pursuant to the Court’s letter of July 26, 2013, this letter contains our written comments and arguments in support of Respondents’ position on the merits of the case and the subject matter jurisdiction of this Court. I. An Overview of the Case Co-Defendant Leederman went to Jim Ball Pontiac-Buick-GMC, Inc. (hereinafter Jim Ball. or Respondent) on February 5, 2009 to have his personal vehicle worked on. Record on Appeal (R.) at 213. Jim Ball attempted to send Mr. Leederman to rent a vehicle through a car rental company while the repairs were being done. R. at 217. For unknown reasons, Mr. Leederman either could not or would not take the car being rented for him. R. at 217. Being out of vehicles they could loan, a Jim Ball employee loaned the personal vehicle of Co-Defendant Jesse Ball to Mr. Leederman. R. at 215. According to the agreement Mr. Leederman signed that day for the vehicle, the vehicle was for Mr. Leederman’s use just for that one day and was to be returned the next day. R. at 317. 2 That evening Mr. Leederman, in turn, loaned that vehicle to another Co-Defendant, Christina Trummer, to drive the vehicle. R. at 272. Ms. Trummer was, thereafter, involved in a collision with Plaintiff-Appellants. R. at 272-273. Co-Defendant Jesse Ball, specifically, in her answer submits that she is the owner and she testified under oath that she owned the vehicle. R. at 56, 242. She also testified, when asked as to who the vehicle was titled to, that she “leased it from GMAC.” Id. Respondent James Ball, owner of Jim Ball, Inc., testified that his daughter Co- Defendant Jesse Ball owns the vehicle. R. at 215, 220, 231. He testified that the title would be in either Jesse Ball’s name or the name of company servicing her lease and that she would have copy of the title. R. at 231-232. There are two issues in this Case: 1) Given that New York Vehicle and Traffic Law §128 defines ownership as having title to, being the property of, or having right of use and possession for a period in excess of 30 days, can ownership be redefined to mean something else so that merely loaning out someone else’s vehicle for one day means that the person loaning the vehicle is also considered an owner of that vehicle? And, 2) given that all parties testify that Co-Defendant Jesse Ball owned the vehicle and that the title was in her name or the name of GMAC and no one provides information disputing these facts, is there any material question of fact to show that Respondent Jim Ball, Inc. owned the vehicle? In light of the judicial admission put forth by the Co-Defendant Jesse Ball in her Answer that she owns the vehicle in question, the uncontroverted testimony that Ms. Ball owned the vehicle, and other evidence to show that Respondents did not own the vehicle, the 4th Department correctly determined that Respondents were entitled to Summary Judgment on the issues. Monette v. Trummer, 105 A.D.3d 1328, 964 N.Y.S.2d 345 (4 Dep’t 2013). II. Subject Matter Jurisdiction and Finality As a preliminary matter, we agree that the decision of the 4th Department decision has finality and that this Court would have proper subject matter jurisdiction to review the decision. 3 However, we disagree with what Appellants put forth to justify its request that this Court disturb the decision. The arguments that Appellants provide lack a basis within law and fact to justify any alteration. III. Section 500.11 Review is Appropriate in this Case as Appellants’ Appeal is without Basis in Law and Fact Appellants claim that public policy concerns justify this Court reviewing this Case, further than Section 500.11, and deciding in its favor. However, these concerns are premised on a series of false assumptions and exaggerations, as neither the facts nor the law support the conclusions they draw. Appellants state that “[i]f this Court were to determine that the Appellate Division order should be affirmed [. . .] it would essentially be creating a blueprint that automobile dealers across the state could use to circumvent the purpose of Vehicle and Traffic Law § 388.” This statement misrepresents the nature of this Case because Appellants’ statement presents a public policy concern that does not actually exist. The plain purpose of Vehicle and Traffic Law § 388 is to hold actual “owners” accountable. Fried v. Seippel, 80 N.Y.2d 32, 41, 599 N.E.2d 651, 655 (1992). “Owners” is defined in Vehicle and Traffic Law §128 as “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.” In asking that this Court overturn the decision of the lower court, Appellants ask that this Court redefine “owner” to mean something not contained in Vehicle and Traffic Law §128 and not intended by the legislature. It is undisputed within the record that Co-Defendant Jesse Ball owned the vehicle, as all the testimony and her legal pleadings state that she owned it. R. at 46, 56. It is also undisputed within the record that the title for the vehicle was in the name of Jesse Ball, GMAC, or both. R. at 232, 247. It is also undisputed within the record that Jesse Ball paid for the vehicle and for its insurance. R. at 248. It is also 4 undisputed that Respondents only had the capacity to loan Co-Defendant Jesse Ball’s vehicle by permission just for one day. R. at 317. Appellants argue by producing as an exhibit a legal article —which is per se improper and objectionable as this exhibit is not contained within the record on appeal—that, because an automobile dealership would be able to determine how to avoid liability, a serious public policy concern exists. See Appellants’ Letter of July 22, 2013 Ex. B. At best, this exhibit merely cautions dealerships about loaning out its vehicles as a dealership cannot fit within the Graves Amendment’s exceptions under New York law. Id. Appellants argue that the capacity to avoid liability by understanding Vehicle and Traffic Law § 128 means that nefarious activities are afoot. This is not a logical legal argument; the term “ownership” in this Case simply means what it means. The ability to determine what would make one liable does not demonstrate the necessity of redefining a legal term to mean something new. Taking notice of what creates liability and what avoids liability is in part what the civil legal system is about. If somehow the legislature determines that ownership should be redefined for Vehicle and Traffic Law § 388 then the legislature is entitled to pass laws to redefine the term when it feels fit. Ultimately, the public policy concern Appellant raises is nonexistent. The purpose of the law is obvious and has already been a subject of legal analysis as to what persons should do to avoid the risk associated with owning a vehicle. See 8B N.Y. Jur. 2d Automobiles § 1183 (providing history in detail). To that end, dealerships already take steps to prevent themselves from being held vicariously liable under Vehicle and Traffic Law § 388. As evidenced in the Appellants Ex. B, one option for a dealership is to not loan out any vehicles at all. Another option is for dealerships to refer their patrons to a rental car company if they have any obligation to provide a car to their patrons—as Mr. Leederman was referred originally in this Case. See R. at 217. Another option is that dealerships simply accept the risks and try to mitigate the risks and properly insure vehicles that they own. See Appellants’ Ex. B. Appellants show no evidence whatsoever, since the passage of Vehicle and Traffic Law §§ 128, 388, that any dealer is as a condition of employment co-opting its employees’ vehicles and then loaning them out. The concern which Appellants speculate about does not even fit the factual scenario of this case, where a daughter loans her personal vehicle to her dad’s business for the first time ever, for exactly 5 one day. See R. at 246. Indeed, the greater public policy concern would be a decision that would agree with Appellant in this Case creating a new tort that holds everyone who passes off a vehicle to a another party vicariously liable without regard to their negligence. III. Discussion of Merits The Appellant Division correctly decided this case, as no questions of fact exist for a jury. It is undisputed that Jesse Ball owns the vehicle, and it is undisputed that the title is in the name of Jesse Ball and/or GMAC. 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). In this instance, Respondent testifies that he does not own the vehicle. Co- Defendant Jesse Ball admits in her answer that she is the owner of the vehicle in question—thereby making a judicial admission of the fact. Falkowski v. 81 and 3 of Watertown, Inc., 288 A.D.2d 890, 732 N.Y.S.2d 497 (4 Dep’t 2001). Then, it is undisputed in testimony and within the record that Co-Defendant Jesse Ball is the sole owner of the vehicle and that either her name or GMAC’s name is on the title. R. at 232, 247. “Ownership” is (as previously mentioned) defined in Vehicle and Traffic Law §128 as “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.” 6 Ultimately, if the vehicle in question is not “the property of” or “titled to” the party in question, the issue of ownership turns on whether or not the party in question has use and possession in excess of thirty days. See 8B N.Y. Jur. 2d Automobiles § 1183 (defining ownership in detail). For example, it has been repeatedly held that a party which has a security interest in any vehicle out of its possession is not deemed to be an owner. Isaacs v. Tifiletti, 237 A.D.2d 976, 654 N.Y.S.2d 903 (4 Dep’t 1997); Kelly v. Fleet Bank, 271 A.D.2d 654, 706 N.Y.S.2d 190 (2d Dep’t 2000). The Appellate Divisions have also declined to impose vicarious liability on a lessee, based on a driver’s active negligence, where the lessee was a lessee for a period of less than 30 days. See Morris v. Snappy Car Rental, Inc., 595 N.Y.S.2d 577, 585, 189 A.D.2d 115, 126 (4 Dep’t 1993); La Plant v. Cutlip, 258 A.D.2d 769, 685 N.Y.S.2d 840 (3d Dep’t 1999). Thus, in the face of a judicial admission and undisputed testimony, it was Appellants burden to martial some evidence to demonstrate that there is a material question that fits within this definition. Instead, as the record shows, Appellant was unable to do this. On pages 5 and 8 of their July 22, 2013 letter to this Court, Appellants state that “neither James Ball nor Jesse Ball was aware of who is actually listed on the title as the owner.” However, on page 232 of the record on appeal James Ball testifies as to who is on the title, and on page 247 Jesse Ball testifies who is listed on the title. In both cases, the parties say that it is Jesse Ball, GMAC, or both listed on the title and this testimony is undisputed within the record. Then, Appellants state that “the payments for the vehicle were provided by Jim Ball, Inc.” See Appellants’ Letter at 5. As the record shows this is a misstatement—although Ms. Ball testified that she received a $400 vehicle allowance as part of her paycheck, Jesse Ball testified that she paid for the vehicle herself and purchased it herself. R. at 243-244. Ultimately, what Respondent attempts to imply has no basis in the record since Appellants did not even ask how the vehicle allowance worked. For all that the record shows, it could be solely for travel costs. Appellant then also misstates that “. . . Jim Ball, Inc. also provided insurance on the vehicle.” Letter at 5. In fact, Jesse Ball testified that she alone provided insurance for her vehicle. R. at 248. 7 Appellants also state that “a rental agreement” “[. . .] lists Jim Ball, Inc. as the owner.” See Appellants’ Letter at 5. This is incorrect; as a review of the rental agreement demonstrates, nowhere on that rental agreement does it indicate who owns the vehicle. R. at 317. At best the rental agreement indicates who is doing the renting and to whom. Id. As can be read on the form, it says, “Jim Ball Buick Pontiac GMC Cadillac Truck Rental Agreement.” On page 8 of their letter to this Court, Appellants state that the stock number for the vehicle is indicative of ownership; however this contention is also without basis. Appellants conclude this without any evidence as to what stock number means, though they had an opportunity to ask at the depositions. In addition, given that the form Mr. Leederman signed contains no substantive identification of the vehicle in question beyond two unique identifying numbers, the only coherent reason the “stock number” would be there would be the same as the reason the VIN is there, to identify the vehicle. Additionally, in support of their contentions, Appellants put forth Aronov v. Bruins Transportation, Inc., 294 A.D.2d 523, 743 N.Y.S.2d 131 (2d Dep’t 2002), which is inapplicable to this Case. In Arnov, when a Bus Company moved for summary judgment saying that it did not own the bus in question, a copy of a lease was produced showing that the bus company had been leasing the vehicle to its own d/b/a for a period of about 30 days. Id. Here, Appellants have produced no such lease or other evidence to rebut the judicial admission and testimony within the record. As stated in their letter to this Court, Appellants failed to obtain any documents during discovery to rebut the evidence currently within the record and now blames Respondents for their failure to conduct discovery and/or make use of discovery devices to obtain discovery. See Appellant’s letter at 5. As a response to the summary judgment motion, Appellants did not argue that the motion was premature because further discovery was needed and it did not cross move for any outstanding discovery. R. at 284-291. With regard to Appellants’ contentions, given the judicial admission by Ms. Ball, the undisputed testimony, and the other evidence, the burden was on Appellants to produce documents if they wanted to raise a question of fact. It bears some noting, given that Appellants ask why the title was never produced, that both James Ball and Jesse Ball testified that they never possessed the title. R. at 248. Both gave an indication that it would be retained by GMAC as servicer of the lease. (At best, it 8 is noted that Co-Defendant Jesse Ball provided as discovery a copy of her registration only after the motion was heard, long after it could do anyone any good. This registration is attached as Exhibit “A.”) Ultimately, because Appellants’ had every opportunity to obtain any documents that they might need via normal discovery procedures, Appellants should not be entitled to argue that their dallying is somehow a virtue that now proves their unsupported conclusions. Lastly, the Appellant argues that the court below found new facts not contained within the Record on Appeal. It cites to various examples that are either incorrect or without context. For example, when “Plaintiffs conced[ed] that Jesse Ball, not defendant, is the titleholder . . . ,” it is our understanding that Appellants were heard to admit this in open court when the Appellate Division pointed out that Ms. Ball’s answer admits she is the owner and that the testimony of all parties state that she is likely the titleholder. See R. at 56, 242. It is also our understanding that up until this point, Appellants were arguing that Jim Ball was a co-owner or somehow also on the title with Ms. Ball, which would also account for that understanding of the lower court. R. at 288. Ultimately, given that it is undisputed that Ms. Ball, GMAC, or both appear on the title, the statement seems a proper evaluation of the indications provided by Appellants’ prior papers. Next, the Appellants’ state that “the majority incorrectly concluded that Jesse Ball leased the vehicle at issue from GMAC,” arguing that there is no proof for this statement. See Appellant’s Letter at 6. As shown on page 242 of the Record, Jesse Ball states that she leased it from GMAC. That GMAC services the lease is undisputed within the record. R. at 242. Ultimately, given that there is uncontroverted evidence in the record for the facts that the Court below discussed, Appellant’s contentions that new facts were found is without merit. IV. The Graves Amendment The Graves Amendment should be applicable, under 49 USC § 30106(a), only in so far as Appellants have contended in the past that we “rented” the vehicle in question. If somehow it is found that we, as was previously contended, “rented” the vehicle, we would merely preserve our right under that statute. 9 Conclusion Given the judicial admission put forth by the Co-Defendant Jesse Ball in her Answer, the uncontroverted testimony that she owned the vehicle, and no other evidence to show that Respondents did own the vehicle, the Appellate Division correctly determined that Respondents were entitled to Summary Judgment. Monette v. Trummer, 105 A.D.3d 1328, 964 N.Y.S.2d 345 (4 Dep’t 2013). I appreciate your time and efforts in researching and reviewing this matter for the benefit of those parties involved. Respectfully, CHRISTOPHER TURNER LAW OFFICES OF DESTIN C. SANTACROSE Attorneys for the Defendants/Respondents, Jim Ball Pontiac-Buick-GMC, Inc. The Electric Tower, Suite 403 535 Washington Street Buffalo, New York 14203 Telephone: (716) 852-6923