Furthermore, had the defendant's supporting documents been adequate, the court would still find that

For all actions commenced on or after August 10, 2005 , the " Graves Amendment " provides vehicle renters and lessors with a statutory basis for dismissing vicarious cruising rider liability claims in motor vehicle accident lawsuits. This amendment to the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users ("SAFETEA") provides in relevant cruising rider part that:
[a]n 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 cruising rider or lease, if-
(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). 49 U.S.C. 30106(a) . For purposes of the Graves cruising rider Amendment, section 30102(a)(6) of Chapter 301 of Title 49 of the United States Code , entitled Motor Vehicle Safety, defines "motor vehicle" as "a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line."
Motor vehicle rental and leasing defendants use the Graves Amendment as a tort defense to indirect or vicarious liability under state laws such as New York's Vehicle Traffic Law 388 . In pertinent part, that statute provides:
1. Every owner of a vehicle cruising rider 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. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle in the combination, and the owners thereof shall be jointly and severally liable hereunder.
cruising rider 2. As used in this section, "vehicle" means a "motor vehicle", as defined in section one hundred twenty-five of this chapter, except fire and police vehicles, self-propelled combines, self-propelled corn and hay harvesting machines and tractors used exclusively for agricultural purposes, and shall also include "semitrailer" and trailer" as defined in article one of this chapter, whether or not such vehicles are used or operated upon a public highway. For the purpose of this section, self-propelled caterpillar or crawler-type equipment while being operated on the contract site, shall not be defined as motor vehicles. In May of this year, Rep. Bruce Braley (D-IA), cruising rider the former president of the Iowa Trial (aka Personal Injury Plaintiffs ) Lawyers cruising rider Association, introduced an amendment to the 2010 Motor Vehicle Safety Act that would have repealed the Graves Amendment. The Braley Amendment did not make it out of committee onto the floor of Congress for a vote, but it may be reintroduced at some point .
Plaintiff claimed that while a passenger on an "Access-A-Ride" vehicle he was caused to fall out of his wheelchair and sustained an injury. Plaintiff commenced this personal injury action against the New York City Transit Authority (NYCTA), the vehicle's titled cruising rider owner and lessor, the vehicle's driver, and the vehicle's registered owner, American Transit, Inc. NYCTA cross-moved for summary judgment dismissing plaintiff's complaint on the ground that the Graves Amendment applied to exempt cruising rider it from vicarious liability under New York Vehicle Traffic Law 388. Plaintiff opposed that cross motion, arguing cruising rider that NYCTA was not entitled to summary judgment because the NYCTA is not in the business of renting or leasing motor vehicle, and thus not within the class to which the Graves Amendment applies and/or protects.
In denying the NYCTA's cross motion, New York County Supreme cruising rider Court Justice Donna M. Mills ruled that NYCTA had not established cruising rider that it was "engaged in the trade or business of renting or leasing motor vehicles":
At issue here, however, is 49 USC 30106. In the case at bar, plaintiffs dispute that NYCTA is in the business of renting or leasing cruising rider motor vehicles. The lease between the NYCTA and American Transit for the subject vehicle in question is not dispositive on the issue of whether the NYCTA is in the business of renting or leasing cruising rider vehicles. As such, since no other evidence has been presented by NYCTA to establish that it is in the business of renting or leasing vehicles, cruising rider its cross-motion must be denied.
Plaintiff alleged that he sustained personal injuries when his car was struck in the rear by the car owned by the defendant rental car company, Elrac Inc., and driven by the defendant Jermaine L. Darden. The complaint specifically alleges that the plaintiff's injuries were a result of negligence on the part of the "defendants in that said motor vehicle was owned, operated, maintained and controlled in a careless, reckless and negligent manner, in violation of the defendants' respective duties of care[.]" Prior to discovery, Elrac moved to dismiss the complaint against cruising rider it for failure to state a cause of action pursuant to CPLR Rule 3211(a)(7).
In denying Elrac's motion, Queens County Supreme Court Justice Devin P. Cohen held that: (1) Elrac failed to attach complete copies cruising rider of the plaintiff's complaint and Elrac's answer to its motion papers; (2) Elrac failed to introduce a properly authenticated copy of the rental agreement; and (3) the complaint alleged negligent maintenance of the rental vehicle by Elrac, an exception to the Graves Amendment:
A motion to dismiss for failure to state a cause of action is a motion on the pleadings, cruising rider which requires the court to analyze the sufficiency cruising rider of the plaintiff's initial complaint. Here, the defendant fails to attach all of the relevant pleadings to its motion. The third page of the plaintiff's complaint is missing from the documents the defendant offers in support of its motion. Defendant also fails to attach a copy of its own answer, but does not state that its motion is one for pre-answer dismissal. Thus, the court cannot determine from defendant's papers whether the defendant asserted a failure of the plaintiff to state a cause of action or cited the Graves Amendment as a defense in its pleading. These reasons alone would be sufficient to deny defendant's motion.
Even if the defendant had attached the necessary supporting documents, t he affidavit by its regional loss control manager is insufficient to authenticate the purported rental agreement between Elrac and the defendant driver cruising rider as a business record . "[A] requirement of evidence of authenticity...applies to all writings whose relevancy depends upon authorship by a particular person" (Prince, Richardson on Evidence 9-101 [Farrell 11th Ed]). Here, the affidavit states that Elrac is in the business of renting motor vehicles cruising rider to the general public, that it uses rental agreements which are created in the regular course of business and that it rented the vehicle involved in the accident to Mr. Darden in the regular course of its business. However, the affidavit fails to authenticate the particular rental agreement annexed to the motion, or to state that it was created in the regular course cruising rider of business. It is unclear whether this was a mere oversight, or whether the deponent did not have sufficient cruising rider personal knowledge regarding the document. In either case, the purported cruising rider rental agreement is not admissible as a business record. Thus, the defendant fails to establish that the subject vehicle was "rent[ed] or lease[d]...to a person," and that the collision occurred "during the period of the rental or lease" ( see 49 USC 30106[a]). Absent such a showing, the defendant fails to establish by admissible evidence that it qualifies for immunity under the Graves Amendment.
Furthermore, had the defendant's supporting documents been adequate, the court would still find that the substance of the plaintiff's complaint is sufficient on its face. The Graves Amendment confers immunity from liability upon a rental or leasing owner only if "there is no negligence or criminal wrongdoing on the part of the owner" ( see 49 USC 30106[a]). "On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" cruising rider ( Nonnon v. City of New York , 9 NY3d 825 , 827 [2007] [quoting Leon v. Martinez , 84 NY2d 83, 87-88 (1994)]). In this case, there is no question that plaintiff's complaint alleges that Elrac was negligent in its maintenance of the vehicle in question.
In this case, the United States Court of Appeals for the Second Circuit ruled that the Graves Amendment, which applies to "any action commenced on or after the date of enactment of this section [August 10, 2005]", did not apply to this action, which was originally commenced prior to that date.
Plaintiff Merchants originally commenced this action for contribution from defendant Mitsubishi Motor Credit Association (MMCA) on October 20, 2003, prior to the August 10, 2005 effective date of the Graves Amendment. After the action was removed to federal court, and because no judgment had yet been filed in the related underlying personal injury action by the time Merchants filed its suit for contribution, on July 11, 2005, the district court declared Merchants' suit unripe and dismissed it without prejudice to reopen "if and when a judgment is entered in the state court case and plaintiff makes a payment cruising rider on that judgment."
Merchants later made payment on that judgment and requested that this action be reopened, which it was in June 2006, after the effective date of the Grav