Motions by Defendants for summary judgment in their favor are consolidated for disposition in this same Order.

This is an action to recover for the personal injuries suffered by Plaintiff JUAN PEREZ, and property damage sustained to the vehicle owned by Plaintiff DULCE PEREZ, in a motor vehicle accident which occurred on September 12, 2007, in Manhattan.

Parties

Plaintiff JUAN PEREZ was the operator of the Ford vehicle owned by Plaintiff DULCE PEREZ. The PEREZ vehicle was involved in a collision with the Chrysler vehicle operated by Defendant EDWARD TORRES, who was employed by Defendant EXECUTIVE PEGASUS LIMOUSINE, LLC s/h/a EXECUTIVE PEGASUS LIMO (referred to herein as EPL).^[FN1]

Defendant GELCO CORPORATION d/d/a GE FLEET SERVICES (referred to herein as GELCO), was the owner^[FN2] of the subject Chrysler vehicle bearing New Jersey State license plate number OL3048G.^[FN3] GELCO states that it is in the business of long-term commercial leasing of vehicles.^[FN4]

Lessor, GELCO, leased the subject Chrysler vehicle to the lessee, Defendant EPL at the relevant time.^[FN5] [*2]

Defendant EPL contracted with nonparty NBC Universal (referred to herein as NBCU) to drive NBCU employees.^[FN6] The lessee, EPL, maintained possession, care, custody, and control of the subject Chrysler vehicle.^[FN7] Furthermore, EPL maintained liability insurance coverage for the subject vehicle.^[FN8]

Defendant, PEGASUS TRANSPORT SERVICE, INC.,^[FN9] asserts that it is a separate entity from EPL. Also, PEGASUS TRANSPORT SERVICE, INC., avers that it never leased or used the subject Chrysler vehicle; that it never had the vehicle in its possession, care, custody, or control; that it was not responsible for the vehicle's routine maintenance and repair; and that it did not employ TORRES as a driver or otherwise. Moreover, PEGASUS TRANSPORT SERVICE, INC., never obtained insurance for the subject Chrysler vehicle.^[FN10]

DEFENDANT GELCO's MOTION

Defendant GELCO seeks summary judgment dismissing this action as against it, upon the ground that the "Graves Amendment" precludes lawsuits against lessors such as GELCO, and preempts application of New York's vicarious liability statute, VTL 388.^[FN11]

49 USC § 30106, commonly referred to as the "Graves Amendment", entitled "Rented or leased motor vehicle safety and responsibility", ^[FN12] provides, in relevant part, as follows:

"An owner of a motor vehicle that rents or leases the vehicle to a person (or an [*3]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)." ^[FN13] [emphasis added]

The Courts have consistently held that the Graves Amendment prohibits States from imposing vicarious liability on owners-lessors, such as Defendant GELCO. A leading case in New York where the issue was decided is Graham v. Dunkley, 50 AD3d 55 (2d Dept. 2008). Therein, the Court held that: "Congress had the authority, pursuant to the Commerce Clause, to enact the Graves Amendment, thereby preempting conflicting New York law", and that "ends the analysis. ... [A]ctions against rental and leasing companies based solely on vicarious liability may no longer be maintained." Graham v. Dunkley, supra, 50 AD3d at 62.

Likewise, the First Department Court has held that a:"plaintiff's vicarious liability claims against respondent [Enterprise-Rent- A-Car, a car rental company] are barred by 49 USC § 30106, the "Graves Amendment." We reject plaintiff's argument that the Graves Amendment violates the Commerce Clause of the US Constitution (Graham v Dunkley, 50 AD3d 55, 852 N.Y.S.2d 169 [2d Dept 2008], ...[no substantial constitutional question involved], ...; see also Hernandez v Sanchez, 40 AD3d 446, 447, 836 N.Y.S.2d 577 [1st Dept 2007]). We also reject plaintiff's argument that the Graves Amendment violates equal protection ... The renting of vehicles has a clear substantial effect on interstate commerce (Graham, 50 AD3d at 61-62)." [emphasis added]

Hall v. Elrac, Inc., 52 AD3d 262 (1st Dept. 2008).

Accordingly, for the reasons set forth in Graham, supra, and Hall, supra, this action is dismissed as against Defendant, GELCO.

DEFENDANT PEGASUS TRANSPORT SERVICE, INC.'s MOTION

Defendant PEGASUS TRANSPORT SERVICE, INC., seeks summary judgment dismissing this action as against it, upon the ground that there is no basis to impose liability as against it. It is well-established that:

"the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. ...Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the [*4]action. ...General allegations ..., merely conclusory and unsupported by competent evidence tending to establish the essential elements of [the cause of action], are insufficient to defeat defendant[s']...summary judgment motion."

Alvarez v. Prospect Hosp., 68 NY2d 320, 324-25 (1986). In support of PEGASUS TRANSPORT SERVICE, INC.'s position, there is the sworn Affidavit of its President, Cengiz Tasdemir; the sworn testimony of Joan M. Collins, employed as the office manager of EPL; the sworn Affidavit of Patti Pansch, the Insurance Administrator for GELCO; and the sworn testimony of Alan Margossian, employed as an account manager at GELCO. Thereby, PEGASUS TRANSPORT SERVICE, INC., met its burden on the motion, demonstrating that it did not lease, use, possess, control, or maintain the subject Chrysler vehicle, and that it did not employ TORRES as a driver, as discussed more fully infra. Rather, it was solely Defendant EPL who leased, used, possessed, controlled, maintained, as well as insured, the subject Chrysler vehicle; and it was EPL who employed TORRES as a driver.

Plaintiffs herein did not meet their consequent burden to raise a genuine issue of fact showing otherwise.

Accordingly, Defendants' motions are granted, and this action is dismissed only as against two Defendants, GELCO, and PEGASUS TRANSPORT SERVICE, INC. This constitutes the decision and order of this court.

Dated: April 21, 2011

_________________________

Barry Salman, J.S.C.