By notice of motion filed on October 19, 2006, defendants STEWART AND HERTZ VEHICLES (hereinafter HERTZ or movants) move jointly pursuant to CPLR §§3211 and 3212 for an order dismissing the plaintiff's complaint against them on the grounds that the action is barred by United States Code Title 49 §30106. Plaintiffs oppose the motion.

On November 9, 2006, plaintiffs commenced the instant action by filing a summons and verified complaint with the King's County Clerk's office.

Motion Papers

The movants' motion papers consist of an affidavit of their counsel and three annexed exhibits. The annexed exhibits includes the summons and complaint, the movants' verified answer, and a copy of the United States Code Title 49 §30106.

Plaintiffs' opposition papers consist of an affidavit of their counsel and one exhibit. Plaintiffs' exhibit is a copy of Graham v Dunkley, published in the New York Law Journal September 26, 2006.

Defendants/movants responded with a reply affirmation and a supplemental reply affirmation.

Plaintiffs commenced this action by filing a summons and complaint alleging personal injuries sustained as a result of a motor vehicle accident which occurred on January 22, 2005. Plaintiffs' allege that their injuries were caused by a collision between two vehicles near the intersection of 135th Street and Union Turnpike in the County of Queens. One vehicle was a Toyota bearing New York State registration number ACW1807, operated by defendant Robert Roecker. The other vehicle was a 2003 Ford bearing New York State registration number BXL4900, operated by defendant/movant, Lawrence Stewart. Defendant/movant Hertz was the [*2]owner of the 2003 Ford. Hertz is a lessor in the trade or business of renting or leasing motor vehicles.

49 USCA §30106, otherwise known as the Federal Transportation Equity Act of 2005 or Graves Amendment, enacted on August 10, 2005, states in pertinent part:

(a) In general - An 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 USCA §30106 is in direct conflict with New York State Vehicle and Traffic Law §388 (1) which states in relevant part:

Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner...

When a federal statute is in conflict with a state statute, the doctrine of Federal preemption is in effect. The doctrine of Federal preemption is found in the U.S. Constitution, article VI, clause 2, well-known as the Supremacy Clause, which states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding.

Thus, under the Supremacy Clause, if Congress enacted a statute with the intention of exercising its authority to set aside the laws of a state, the federal law must be followed and the state law is preempted (Barnett Bank of marion County, N.A. v Nelson, 517 U.S. 25, 30, 116 S.Ct. 1103, [1996]). A federal statute invalidates any state law which conflicts or is contrary to a valid Federal statute (see Maryland v Louisiana, 451 U.S. 725, 101 S.Ct. 2114).

The doctrine of Federal preemption requires courts to examine Congressional intent, which may be explicitly stated in the statutory language or implicitly contained in its structure and purpose. Absent explicit language, an intent to supersede state law may be inferred where [*3]the scheme of Federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it (see Fidelity Fed. Sav. & Loan Assn v de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014; cited by Ambrosio v Barnes-Hind, 211 AD2d 70 [3rd Dept. 1995]).

The express language of 49 USCA §30106, the Federal Transportation Equity Act of 2005, makes evident that Congress intended to preempt New York State's Vehicle and Traffic Law §388 which holds an owner of a leased vehicle vicariously liable for the negligence of an operator of its vehicle. It is a familiar and well established principle that the Supremacy Clause invalidates state laws when, acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms (Jones v Rath Packing co., 430 US 519, 525, 97 S.Ct. 1305). 49 USCA §30106 explicitly states that an owner of a motor vehicle that rents or leases the vehicle shall not be liable under the law of any State (emphasis applied).

The plaintiff raised the issue that Congress acted outside constitutional limits when preempting states' vicarious liability statutes. In support of their argument, plaintiff submits a Queens County Supreme Court opinion, decided on September 11, 2006. In that decision, the court held that 49 USCA §30106 is an unconstitutional exercise of congressional authority under the Commerce Clause of the U.S. Constitution, Article I, §8. Plaintiff requests this court to also find that Congress' enactment of 49 USCA §30106 was beyond their constitutional power to legislate.

Even if this court were to accept the decision of the Queens County Supreme Court, a court of concurrent jurisdiction, it would be inappropriate to apply here at this time. The court finds that it does not have the authority to determine the constitutionality of 49 USCA §30106 because there has been no notice to the United States Attorney General or the New York State Attorney General.

Rule 44 of the Federal Rules Appellate Procedure, 28 USCA, requires that a party who questions the constitutionality of an Act of Congress in a proceeding in which the United States is not a party, must provide written notice of that challenge to the clerk. Rule 44 is designed to implement 28 USC §2403(a), which states that:

in any action, suit or proceeding in a court of the United States to which the United States...is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene... for argument on the question of constitutionality.

Similarly, New York State Civil Procedure Law and Rules §1012 (b)(1), states in relevant part:

When the constitutionality of a statute of the state, or a rule and regulation adopted pursuant thereto is involved in an action to which the state is not a party, the attorney-general, shall be notified and permitted to intervene in support of its constitutionality.

In the case at bar, plaintiff wishes to raise the constitutionality of an Act of Congress in state court. There is no indication that plaintiff has provided notice to the United States Attorney [*4]General or the New York State Attorney General. Plaintiff's contention cannot, therefore, be addressed at this time.

The court's decision on the constitutionality of 49 USCA §30106 is stayed pursuant to

CPLR §2201 while plaintiff is afforded 30 days to serve notice on both the United States Attorney General and the New York State Attorney General. The motion is adjourned to July 10, 2007 for further argument.

The foregoing constitutes the decision and order of the court.

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J.S.C.