Action Dismissed Pursuant To The Graves Amendment

March 18, 2010

London Fischer LLP congratulates Clifford B. Aaron and Stephanie Kudrle on obtaining a dismissal in favor of NILT, Inc. based upon the doctrine of Federal Preemption in the case Gomez v. Nissan Infinity, et al., venued in Supreme Court, New York County.

The Gomez action arose out of a two vehicle accident which occurred on February 12, 2008, in which a vehicle driven by plaintiff Ramon Gomez collided with a Nissan motor vehicle driven by co-defendant Lisa Pitingolo and leased from Nissan Infinity, LT. As a result of the accident, plaintiff allegedly sustained extensive injuries. His wife brought a derivative action. Plaintiffs’ negligence theory against Nissan Infinity, LT., was based upon vicarious liability, pursuant to Section 388 of the Vehicle and Traffic Law (VTL), as the lessor of the vehicle leased to defendant Pitingolo at the time of the accident.

Attorneys Clifford B. Aaron and Stephanie Kudrle served a motion to dismiss for failure to state a cause of action, on the grounds that the Transportation Equity Act, codified at 49 U.S.C § 3016 (a/k/a: the “Graves Amendment), enacted on August 10, 2005, preempted Section 388 of the VTL for owners or affiliates of an owner “engaged in the trade or business of renting or leasing motor vehicles.” In opposition to the motion, plaintiffs contended that the motion was premature since additional discovery might reveal independent negligence on the part of Nissan Infinity, LT, with regards to mechanical malfunction of the vehicle or negligent entrustment of the vehicle to Pitingolo. The Graves Amendment does not protect leasing companies from liability if they are shown to be independently negligent for the happening of an accident.

In anticipation of plaintiffs’ argument, attorneys Aaron and Kudrle obtained a detailed affidavit from a representative of Nissan Infinity, LT., attesting to the fact that Nissan Infinity, LT does not engage in the repair, maintenance, service, inspection and/or control of its leased vehicles. Instead, pursuant to the lease agreement, the lessee is responsible for maintaining the vehicle. Additionally, the affidavit stated that all face-to-face transactions are conducted through authorized Nissan dealerships, and lease agreement is merely assigned to Nissan Infinity, LT after it is executed; consequently, Nissan Infinity, LT could not be held liable under a theory of negligent entrustment to defendant Pitingolo. Justice George J. Silver’s decision extensively cited the representative’s affidavit as proof that Nissan Infinity, LT could not be held independently negligent under either theory proffered by the plaintiffs. The court further held that plaintiffs’ vicarious liability claims were preempted by the Graves Amendment, and granted Nissan Infinity, LT’s motion to dismiss.