Brown v. McKenzie

Brown v McKenzie (2019 NY Slip Op 01364) Brown v McKenzie 2019 NY Slip Op 01364 Decided on February 26, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on February 26, 2019 Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ. 8518 303309/14 [*1]Tonjalaya Brown, Plaintiff, v Derrick McKenzie, Defendant-Respondent, Value Store It, LLC, Defendant-Appellant. Ahmuty, Demers & McManus, Albertson (Glenn A. Kaminska of counsel), for appellant. Cerussi & Spring, P.C., White Plains (Christopher B. Roberta of counsel), for respondent. Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about September 27, 2017, which, in this action for personal injuries sustained in a motor vehicle accident, denied the motion of defendant Value Store It, LLC (Value) for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs. Value failed to establish entitlement to judgment as a matter of law under the Graves Amendment (49 USC § 30106[a][1]; Cassidy v DCFS Trust, 89 AD3d 591 [1st Dept 2011]). The evidence submitted by Value was insufficient to show that it was engaged in the trade or business of renting or leasing motor vehicles. Rather, the evidence showed that Value was in the business of renting storage space and that the certificate of title for the subject vehicle designates its use as "private." We have considered Value's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: FEBRUARY 26, 2019 CLERK