Bin Chan v Burns 2024 NY Slip Op 30505(U) February 15, 2024 Supreme Court, New York County
Docket Number: Index No. 452172/2019 Judge: Hasa A. Kingo Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.452172/2019 CHAN, BIN vs. BURNS, JEROME M.

Motion No. 002 Page 1 of 4 The following e

- filed documents, l isted by NYSCEF document number (Motion 002) 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66

were read on this motion to/for DISMISS

.
D e f e n d a n t ARROW CARS LTD. i/s/h/a ARROW CARS a/k/a ARROW RENT

(hereinafter referred to as “ARROW”) m o v e s , u n o p p o s e d

, for an o rder

, pursuant to CPLR § 3211

(a)(7)

, dismissing plaintiff B I N C H A N ’ s ( “ p l a i n t i f f ” ) s ummons and a mended c omplaint a s a g a i n s t

i t on the basis o f p l a i n t i f

f ’ s claims against defendant ARROW b e i n g barred pursuant to 49 U

. S

. C

§ 30106 as a n i m proper party to the action under the Graves Amendment

. This is a personal injury action arising from a motor vehicle accident on January 3, 2017,

at the intersection of Henry Street and Pikes Street, New York, NY. ARROW was the lessor of a

2015 Honda Civic under license plate number GZT9761, Vin # 19XFB2F52FE281706. ARROW

was the owner of the vehicle involved in the incident and leased by the NYC Police Department

.

I t i s u n d i s p u t e d t h a t ARROW was not a negligent party to this action as it was merely the

titled owner of the subject vehicle. The sole issue, therefore, is whether ARROW may be amenable

to vicarious liability under Vehicle and Traffic § 388

.



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. HASA A. KINGO PART 05M
Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 452172/2019

MOTION DATE 11/15/2023

MOTION SEQ. NO. 002

DECISION + ORDER ON MOTION BIN CHAN,

Plaintiff,

- v
- JEROME M. BURNS, ARROW CARS, NEW YORK CITY POLICE DEPARTMENT

Defendant.

------------------------------------------------------------------- -- ------------ X 

### FILED: NEW YORK COUNTY CLERK 02/16/2024 03:20 PM INDEX NO. 452172/2019

NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/15/2024

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### [* 1]452172/2019 CHAN, BIN vs. BURNS, JEROME M.

Motion No. 002 Page 2 of 4 The Graves Amendment, regarding rented or leased motor vehicle safety and

responsibility, bars vicarious liability actions against professional lessors and renters of vehicles,

as would otherwise be permitted under Vehicle and Traffic Law § 388 ( Gluck v Nebgen , 72 AD3d

1023 [2d Dept 2010 ]; Graham v Dunk'ley , 50 AD3d 55 [2d Dept. 20 08]; Hernandez v. Sanchez

,

40 AD3d 446 [1st Dept. 2007]).

In the instant case, it is undisputed that t h e vehicle a t i s s u e is a leased vehicle. A R R O W

submits the affidavit of Gary Stempa, claims specialist for A R R O W

, s tat ing that the company

engaged in leasing motor vehicles pursuant to lease agreements. The a ffidavit states that on

November 18, 2016, the New York City Police Department signed a rental agreement as lessee

with Arrow Rent as lessor. Further, since defendant /operator, Jerome M. Burn s , is a police officer

and not an employee of A R R O W or acting pursuant to its instructions, the first element of 49

U.S.C. § 30106 is satisfied

.
In addition, a review of the c o m p l a i n t does not reveal any specific claims of negligence

against ARROW. The only claim of negligence against ARROW is a general c laim against all

defendants. Plaintiff’s alleged claims against ARROW are for vicarious liability only.

Accordingly, the second element of 49 U.S.C. § 30106 is satisfied.

L i k e w i s e , t he Transportation Equity Act of 2005 contains an a mendment that overrides and

negates state’s vicarious liability for companies that lease and/or rent motor vehicles. As such, and

pursuant to the statute, any matter filed after August 10, 2005 is subject to this provision. Since

the action was commenced on or about December 29, 2017, it is barred by that statute

. The plain language of the statute that 49 U.S.C. §30106, barring vicarious liability for

leased vehicles, expressly preempts New York State Vehicle and Traffic Law §388. The

application of the Graves Amendment further dictates that entities engaged in the trade or busine ss 

### FILED: NEW YORK COUNTY CLERK 02/16/2024 03:20 PM INDEX NO. 452172/2019

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### [* 2]452172/2019 CHAN, BIN vs. BURNS, JEROME M.

Motion No. 002 Page 3 of 4 or renting/leasing of motor vehicles, such as ARROW , shall not be held liable for damages in the

absence of any negligence or criminal wrong doing. Actions such as t h i s , based solely on vicarious

liability, are therefore barre d.

As ARROW is not a proper party to this action and is entitled to the protection from

vicarious liability claims pursuant to 49 U.S.C. § 30106, the complaint against A R R O W m u s t be

dismissed.

Moreover, ARROW did not ne gligently entrust the operator of the motor vehicle. To state

a claim for negligent entrustment, “the defendant must either have some special knowledge

concerning a characteristic or condition peculiar to the person to whom a particular chattel is given

wh ich renders that person’s use of the chattel unreasonably dangerous ” ( s ee Byrne v. Collins , 77

A D 3d 782, 784 [ 2nd Dept 2010 ] ).

T o state a cause of action for negligent entrustment, plaintiff must establish that defendant

ARROW had control over the vehicle and was negligent in entrusting it to a third party when

A R R O W knew, or in the exercise of ordinary care shoul d have known, that the third

- party was

incompetent to operate the vehicle ( s ee Bennett v. Geblein , 71 A D 96, 99 [ 4th Dept 1979 ] ).

H e r e , ARROW presented Gary Stempa ’ s a f f i d a v i t i n support o f t h e p r o p o s i t i o n that it is

eng aged in the business of leasing vehicles, that the vehicle was operated pursuant to a lease

agreement, that the licensed operator was not an employee of ARROW and that there were no

mechanical issues with the leased vehicle in question which was not in the dominion or control of

ARROW. The 2015 Honda Civic under New York license plate number GZT9761 was a leased

vehicle and regularly serviced for mechanical upkeep

.

A c c o r d i n g l y , a s there are no triable issues of fact to be determined in this matter a s t o

A R R O W

, t he pre

- emption of VTL § 388 and the federal statute 49 U.S.C. § 30106 bars any finding 

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### [* 3]452172/2019 CHAN, BIN vs. BURNS, JEROME M.

Motion No. 002 Page 4 of 4 of vicarious liability as to ARROW. As such, plaintiff’s a mended s ummons and c omplaint m u s t

b e dismissed as against A R R O W pursuant to 49 U.S.C. § 30106 on the grounds that A R R O W is

not a proper party under the Graves Amendment.

A c c o r d i n g l y , i t i s h e r e b y

O R D E R E D t h a t A R R O W ’ s u n o p p o s e d m o t i o n i s g r a n t e d i n i t s e n t i r e t y ; a n d i t i s f u r t h e r

O R D E R E D t h a t plaintiff ’ s amended summons and complaint i s dismissed as against

ARROW pursuant to 49 U.S.C. § 30106 on the grounds that ARROW is not a proper party under

the Graves Amendment.

T h i s constitutes t h e d e c i s i o n a n d o r d e r o f t h e c o u r t

.

2/15/2024 DATE HASA A. KINGO, J.S.C.

CHECK ONE: CASE DISPOSED X NON

- FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE 

### FILED: NEW YORK COUNTY CLERK 02/16/2024 03:20 PM INDEX NO. 452172/2019

NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 02/15/2024

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