The motion for summary judgment by defendants Gutierrez and Vault is granted.

The cause of action is for personal injuries sustained by the plaintiff in a multiple vehicle collision. Plaintiff alleges that the accident was caused, in part, by defendant Guttierez's negligence in the operation of his motor vehicle. Plaintiff also asserts that defendant GMAC i/s/h/a John Doe Leasing a/k/a Vault, a Leasing Company ("Vault"), as owner of the vehicle, is vicariously liable.

Vault asserts that it is not responsible for the alleged negligent control of defendant Guttierez's vehicle and cannot be held vicariously liable based upon federal statute. (Strudwick Affirmation, Exhibit C; Strudwick Affirmation ¶¶ 5-6.) The company has submitted an affidavit stating that although it was the registered owner of the 2006 GMC Pontiac at the time of the accident, the vehicle was leased to defendant Guttierez and under his sole control; he was not acting as an agent for Vault, nor was he acting on behalf of the company or for its benefit. (Strudwick Affirmation, Exhibit C.)

Vault's motion for summary judgment is granted. Title 49 U.S.C. §30106, the "Graves Amendment," bars claims against car rental or leasing agencies based solely on vicarious liability and is applicable to all actions commenced after August 10, 2005. 49 U.S.C. §30106; See also, Graham v. Dunkley, 50 AD3d 55 (2d Dept. 2008). In order for a personal injury [*2]claim to succeed against a car rental or leasing agency, the agency itself must have been negligent or committed some wrong doing. 49 U.S.C. §30106. In addition, plaintiff concedes that her claim against Vault is based on vicarious liability and does not oppose its dismissal from the suit. (Warren Affirmation ¶ 6).

Plaintiff and defendants Tater and Rivera argue that defendant Guttierez's motion for summary judgment is premature because discovery is incomplete. (Warren Affirmation ¶ 3; Hoffman Affirmation ¶ 8.) Pursuant to CPLR §3212(f), if it appears from the opposing affidavits that material facts that justify opposition may exist but cannot then be stated, the court may deny the motion and issue a continuance to permit disclosure. C.P.L.R. §3212(f).

Defendant Guttierez argues that this action is ripe for summary judgment, because there are no triable issues of fact. (Strudwick Affirmation ¶¶ 13-15.) Pursuant to C.P.L.R. §3212, incomplete discovery does not bar a grant of summary judgment, unless the opposing party can show a reasonable attempt at discovery was made and that triable issues of fact may be uncovered through further discovery. See C.P.L.R. §3212 (f); See also, Perez v. Brux Cab Corp., 251 AD2d 157 (1st Dept. 1998).

Summary judgment is a drastic remedy and should only be granted where there is no triable issue of fact. Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 (1979). The movant must make a prima facie showing that he is entitled to judgment as a matter of law. Zuckerman v. City of New York, 49 NY2d 557 (1980) Once the movant has submitted his proof, the opponent may counter by offering proof, in admissible form, of an issue of material fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). In deciding a motion for summary judgment, the court views the facts in the light most favorable to the non-moving parties. Negri v. Stop & Shop, Inc., 65 NY2d 625 (1985).

A rear-end collision with a stopped vehicle creates a prima facie case of negligence which may be overcome with a non-negligent explanation. Mitchell v. Gonzalez, 269 AD2d 250 (1st Dept. 2000). Defendant Guttierez offers a non-negligent explanation in his affidavit wherein he states that his car was at a complete stop when it was rear-ended by Tater's vehicle. (Strudwick Affirmation, Exhibit D.) Courts have ruled that when a vehicle which has come to a complete stop is rear-ended, causing it in turn to rear-end the vehicle in front of it, the operator of that vehicle is not deemed negligent, as he is not the proximate cause of plaintiff's injuries resulting from the collision. See e.g., Arrastia v. Sbordone, 225 AD2d 375 (1st Dept. 1996); Mohamed v. Town of Niskayuna, 267 AD2d 909 (3d Dept. 1999); Lehmann v. Sheaves, 231 AD2d 687 (2d Dept. 1996).

Neither plaintiff nor the other defendants offer any proof to rebut Guttierez's statement, although both parties have personal knowledge of the relevant facts. As such, there is no triable issue of fact and defendant Guttierez is entitled to summary judgment. See, Niyazov v. Bradford, 13 AD3d 501 (2d Dept. 2004); Campanella v. Moore, 66 AD2d 423 (2d Dept. 1999). [*3]

Movant is directed to serve a copy of this order with notice of entry upon all parties and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Date: June 26, 2008_______________________

J.S.C.