By notice of motion dated May 31, 2007, defendants Cameron R. Bradley and U-Haul Company of Oregon seek summary judgement pursuant to CPLR § 3212 and 49 U.S.C. § 30106 (commonly referred to as the "Graves Amendment" to the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users ("SAFETEA-LU") dismissing plaintiff's complaint as to defendant U-Haul Company of Oregon.

The parties appeared in Part 6 of this Court for oral argument on the motion on July 11, 2007 and decision was reserved.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff Jose Castillo was operating his vehicle on July 31, 2006 at approximately

4:45 P.M. when the vehicle operated by defendant Cameron R. Bradley and owned by defendant U-Haul Company of Oregon (hereinafter "U-Haul") collided with plaintiff's vehicle at or near the intersection of 8th Avenue and 9th Street, Brooklyn, New York. Earlier that day, defendant Bradley had obtained the vehicle from defendant U-Haul's Brooklyn location for local use within New York City for a one day period. Bradley made the reservation several days earlier using a VISA credit card over the internet.

On December 1, 2006, plaintiff commenced this action seeking recovery for the injuries sustained by filing a summons and complaint against defendants Bradley and U-Haul. Issue was thereafter joined by service of an answer dated April 25, 2007 which contained an affirmative defense based on 49 U.S.C. § 30106. Defendant now seeks summary judgment based upon this affirmative defense.

LAW AND APPLICATION

Summary judgment is a drastic remedy, and should be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923, 501 NE2d 572 (1986). The burden is upon the moving party to make a prima facie showing that the movant is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts. Giuffrida v. Citibank, 100 NY2d 72, 760 NYS2d 397, 790 NE2d 772 (2003). A failure to make that showing requires the denial of the motion, regardless of the adequacy of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez v. Prospect Hospital, supra , at 324.

In support of the motion, defendant annexes a copy of the summons and complaint, its answer and the rental agreement indicating that the vehicle involved in the collision was rented to defendant Bradley on the day of the accident.^[FN1] Based on these documents, defendant urges the Court to dismiss the complaint as moving defendant has established that it is engaged in the trade or business of renting or leasing motor vehicles and there is no negligence or criminal [*2]wrongdoing alleged against it. See 49 U.S.C. § 30106.^[FN2]

In opposition, plaintiff asserts that 49 U.S.C. § 30106 is an unconstitutional exercise of Congressional power under the Commerce Clause and concerns an area of law reserved to the States by the Tenth Amendment of the United States Constitution, relying on Graham v. Dunkley, 13 Misc 3d 790, 827 NYS2d 513 (Queens Cty. 2006).

However, there is ample authority to the effect that the "Graves Amendment" has pre-empted New York State Vehicle & Traffic Law § 388. See e.g. Jones v. Bill, 34 AD3d 741, 825 NYS2d 508 (2nd Dept. 2006); Hernandez v. Sanchez, 40 AD3d 446, 836 NYS2d 577 (1st Dept. 2007); Williams v. White, ___ AD3d ___, 2007 Slip Op 02227 (3rd Dept. 2007); and Infante v. U-Haul Co. of Fla., 11 Misc 2d 529, 815 NYS2d 921 (Queens Cty. 2006). Further, the constitutionality of the statute has been upheld in two out of the three federal court cases found to have considered the question.^[FN3] Those cases are found persuasive and controlling.

Since moving defendant U-Haul has established that it is engaged in the trade or business of renting or leasing motor vehicles and there is no separate allegations of negligence or criminal wrongdoing alleged against it, the motion is granted.

CONCLUSION

Defendants' motion is granted. The complaint is dismissed against defendant U-Haul Company of Oregon only.

This constitutes the decision and order of the court. Defendant is directed to settle Order on notice.

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J. S. C.