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, listed 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 .

Defendant ARROW CARS LTD. i/s/h/a ARROW CARS a/k/a ARROW RENT 

(hereinafter referred to as “ARROW”) moves, unopposed, for an order, pursuant to CPLR § 3211 

(a)(7), dismissing plaintiff BIN CHAN’s (“plaintiff”) summons and amended complaint as against

it on the basis of plaintiff’s claims against defendant ARROW being barred pursuant to 49 U.S.C

§ 30106 as an improper 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.

It is undisputed that 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

1 of 4 [* 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. 2008]; Hernandez v. Sanchez, 

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

In the instant case, it is undisputed that the vehicle at issue is a leased vehicle. ARROW

submits the affidavit of Gary Stempa, claims specialist for ARROW, stating that the company 

engaged in leasing motor vehicles pursuant to lease agreements. The affidavit 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. Burns, is a police officer 

and not an employee of ARROW or acting pursuant to its instructions, the first element of 49 

U.S.C. § 30106 is satisfied.

In addition, a review of the complaint does not reveal any specific claims of negligence 

against ARROW. The only claim of negligence against ARROW is a general claim 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.

Likewise, the Transportation Equity Act of 2005 contains an amendment 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 business 

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

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

2 of 4 [* 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 wrongdoing. Actions such as this, based solely on vicarious 

liability, are therefore barred.

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 ARROW must be 

dismissed.

Moreover, ARROW did not negligently 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 

which renders that person’s use of the chattel unreasonably dangerous” (see Byrne v. Collins, 77 

AD3d 782, 784 [2nd Dept 2010]).

To 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 

ARROW knew, or in the exercise of ordinary care should have known, that the third-party was 

incompetent to operate the vehicle (see Bennett v. Geblein, 71 AD96, 99 [4th Dept 1979]).

Here, ARROW presented Gary Stempa’s affidavit in support of the proposition that it is 

engaged 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.

Accordingly, as there are no triable issues of fact to be determined in this matter as to

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

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

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

3 of 4 [* 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 amended summons and complaint must

be 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.

Accordingly, it is hereby

ORDERED that ARROW’s unopposed motion is granted in its entirety; and it is further

ORDERED that plaintiff’s amended summons and complaint is 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.

This constitutes the decision and order of the court.

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

4 of 4 [* 4]