Bronx Supreme Grants Lessor's Motion to Renew and for Summary Judgment Based on Graves Amendment

AUTO – LEASED VEHICLE – GRAVES AMENDMENT
Antwi v. HVT, Inc.
(Sup. Ct., Bronx Co., decided 9/11/2009)

For all actions commenced on or after August 10, 2005, the "Graves Amendment" has provided vehicle lessors with a statutory basis for dismissing vicarious liability claims in motor vehicle accident lawsuits.  This amendment to the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users ("SAFETEA") provides in relevant part that:

[a]n owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if-

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).  49 U.S.C. § 30106(a).

After plaintiff had successfully moved for partial summary judgment on liability against all defendants, defendant HVT, Inc. moved for leave to amend its answer to add an affirmative defense based on the Graves Amendment, for renewal of the plaintiff's previous motion, and for summary judgment in its favor based on the Graves Amendment.  Plaintiff opposed HVT's motion, arguing: (1) that HVT's Graves Amendment defense lacked merit; (2) that HVT waived that affirmative defense by not having asserted it in its original answer; (3) that such defense was prejudicial; (4) that HVT proffered no excuse for having failed to seek summary judgment in response to plaintiff's prior motion; and (5) that HVT failed to establish its prima facie entitlement to summary judgment.

In support of its motion, HVT submitted an an affidavit from a Diane Adams, the Manager of the Procedures and Regulations Department for American Honda Finance Corporation, the servicer of HVT's leasing program and agent of HVT for all obligations of HVT as a lessor under its lease contracts. Adams averred that the vehicle that struck the plaintiff's car was a leased vehicle, owned by HVT.  The Adams affidavit also stated that the lessee driver involved in the accident was not an employee or agent of HVT, that HVT had no duty to repair or maintain the leased vehicle, that the vehicle's lessee was responsible for repairs and maintenance, and that as of the accident date, HVT was in the business of leasing motor vehicles to the public.

In granting HVT's motion for renewal of plaintiff's earlier motion for partial summary judgment, Bronx County Supreme Court Justice Nelson Roman reiterated the general rule that an application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court.  Justice Roman went on to note that the New York courts have carved out an exception to that general rule:

Motions to renew can now be granted even when all requirements for renewal are not met. Bank One v. Mui, 38 AD3d 809 (2nd Dept. 2007); Strong Brookhaven Memorial Hospital Medical Center, 240 AD2d 726 (2nd Dept. 1997). As such, motions to renew can be granted even when the newly offered evidence was in fact known and available to the movant but never provided to the Court. Id.; Tishman Construction Corporation of New York v. City of New York, 280 AD2d 374 (1st Dept. 2001); Trinidad v. Lantigua, 2 AD3d 163 (1st Dept. 2003);; Mejia v. Nanni, 307 AD2d 870 (1st Dept. 2003); U.S. Reinsurance Corporation v. Humphreys, 205 AD2d 187 (1st Dept. 1994); J.D. Structures, Inc. v. Waldbum, 282 AD2d 434 (2nd Dept. 2001); Sorto v. South Nasaau Community Hospital, 273 AD2d 373 (2nd Dept. 2000); Cronwall Equities v. International Links Development Corp., 255 AD2d 354 (2nd Dept. 1998); Goyzueta v. Urban Health Plan, Inc., 256 AD2d 307 (2nd Dept. 1998); Liberty Mutual Insurance Company v. Allstate Insurance Company, 237 AD2d 260 (2nd Dept. 1997). It is well settled that renewal with new evidence previously known and available to movant is warranted if the interest of justice and substantial substantive fairness so dictate. Bank One, supra; Trinidad, supra; Mejia, supra; Metcalfe v. City of New York, 223 AD2d 410 (1st Dept. 1996); Scott v. Brickhouse, 251 AD2d 397 (2nd Dept. 1998); Strong, supra; Goyzueta, supra. Thus, under this new rubric, a motion to renew can be granted, in the exercise of the court's discretion, even when the new evidence proffered was readily available to the moving party, such that all requirements necessary for renewal have not been met, including the failure to proffer an excuse for failing to provide previously available and known evidence with the previous motion, Trinidad, supra, or when the excuse is mere inadvertence or ignorance, J.D. Structures, Inc., supra.

With respect to HVT's failure to having pled the Graves Amendment as an affirmative defense in its original answer, the court observed:

The failure to plead an affirmative defense when required does not, however, always preclude the consideration of such defense in support or in defense of a motion for summary judgment. Accordingly, when a defendant fails to plead an affirmative defense, but asserts said defense in connection with a motion for summary judgment, the waiver is said to have been retracted and the court can grant or deny summary judgment based upon the never pled affirmative defense. BMX Worlwide, Ltd. v. Coppola N.Y.C., Inc., 287 AD2d 383 (1st Dept. 2001); Rogoff v. San Juan Racing Ass'n, Inc., 54 NY2d 883 (1981); Sheils v. County of Fulton, 14 AD3d 919 (3rd Dept. 2005); Lerwick v. Kelsey, 24 AD3d 918 (3rd Dept. 2005); Kirilescu v. American Home Product Corp., 278 AD2d 457 (2nd Dept. 2000); Adsit v. Quantum Chemical Corp., 199 AD2d 899 (3rd Dept. 1993); McSorley v. Philip Morris, Inc., 170 AD2d 440 (2nd Dept. 1991); International Fidelity Ins. Co. v. Robb, 159 AD2d 687 (2nd Dept. 1990). The relevant inquiry is the prejudice or surprise associated with the assertion of a never pled affirmative defense. BMX Worldwide, LTD, supra; Sheils, supra. Said prejudice or surprise is ameliorated, however, when it is shown that the plaintiff has had a full and fair opportunity to respond and oppose the defense being asserted in connection with summary judgment. Sheils, supra; Kirilescu, supra; McSorely, supra; International Fidelity Ins. Co. v. Robb, supra. Additionally, the failure to raise an affirmative defense, when required, nevertheless allows the court to consider said defense when it is shown that the issues relative to said defense have been explored throughout the course of discovery. Rogoff v. San Juan Racing Ass'n, Inc., 77 AD2d 831 (1st Dept. 1980), aff'g, 54 NY2d 883 (1981).

In granting HVT's motion in its entirety, Justice Roman concluded that "the interest of justice warrants renewal of this Court's prior Decision and Order insofar as the new evidence presented not only warrants denial of the Court's prior Decision and Order as against HVT, but also warrants summary judgment in HVT's favor":

Contrary to plaintiff's contention, the Graves Amendment bars the instant action against HVT. As per Adams' affidavit HVT, in the business of leasing vehicles to the public, leased the vehicle herein to Bargellini and was thus not operating the vehicle herein. Furthermore, HVT had no duty to repair or maintain said vehicle and thus did not endeavor to do so. Accordingly, it is clear that HVT's liability in the instant action is vicarious by virtue of HVT's status as owner of said vehicle. Nothing indicates that HVT was in any way negligent in relation to the accident herein. It is thus clear that as per the Graves Amendment, HVT, as a lessor of vehicles, cannot be vicariously liable for the acts of Bargellini and thus cannot be liable to the plaintiff.

For the foregoing reasons, the Court cannot grant plaintiff partial summary judgment on liability against HVT and upon renewal must therefore vacate that portion of the Court's prior Decision and Order. Thus, upon renewal, summary judgment against HVT is hereby denied.

HVT's motion seeking summary judgement is hereby granted.

As discussed above, with Adams' affidavit, HVT establishes prima facie entitlement to summary judgment insofar as it demonstrates that it is only vicariously liable to the plaintiff herein and that said liability is barred by the Graves Amendment. Contrary to plaintiff's assertion, Adams' affidavit is competent evidence establishing HVT's burden. That a court of concurrent jurisdiction disregarded a similar affidavit is of no binding consequence to this court. This is especially true when the basis for discrediting the affidavit is the purported absence of a statement by HVT denying its negligence. Simply put, whether a party was negligent is an issue for the court to decide based upon facts stated and the applicable law. Indeed a party's conclusory statement proclaiming that it was not negligent has no legal value, since despite such a statement the facts and law can merit a conclusion to the contrary. In this case, Adams' affidavit sufficiently negates HVT's active negligence insofar as it negates any maintenance responsibility for the vehicle herein. Further, the affidavit establishes that HVT's liability stems solely from its status as owner of the vehicle herein.

Contrary to plaintiff's assertion, HVT has not waived entitlement to summary judgment pursuant to the Graves Amendment because it failed to plead the same as an affirmative defense.

The failure to plead an affirmative defense when required does not always preclude the consideration of such defense in support or in defense of a motion for summary judgment. Accordingly, when a defendant fails to plead an affirmative defense, but asserts said defense in connection with a motion for summary judgment, the waiver is said to have been retracted and the court can grant or deny summary judgment based upon the never pled affirmative defense. The relevant inquiry is the prejudice or surprise associated with the assertion of a never pled affirmative defense. Said prejudice or surprise is ameliorated however, when it is shown that the plaintiff has had a full and fair opportunity to respond and oppose the defense being asserted in connection with summary judgment.

In this case, assuming the Graves Amendment has to be raised as an affirmative defense, an issue which this Court need not reach, it is true that HVT never raised the Graves Amendment as an affirmative defense in its answer. However, insofar as HVT raises said defense in connection with the within motion, it has retracted any waiver and to the extent that plaintiff is being given a full and fair opportunity to address said defense on the merits, HVT has ameliorated any prejudice appurtenant to raising this defense for the first time by motion. Contrary to plaintiff's assertion, HVT's failure to raise the defense in opposition to plaintiff's prior motion for summary judgment does not constitute waiver or preclude HVT from raising the defense in connection with the instant motion to renew. After all, seeking to have the court consider evidence that was never presented to the court on a prior motion is the very essence of a motion to renew. Accordingly, based on the foregoing, HVT establishes entitlement to summary judgment.

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