ASSOCIATED GROUP SERVICES INC v. GROW (1999)

Appeals from two orders of the Supreme Court (O'Brien III, J.), entered November 26, 1997 and January 5, 1998 in Madison County, which, inter alia, denied plaintiff's motion for summary judgment.

Following a collision, defendant arranged to have repairs performed on his automobile by Davidson Chevrolet Inc. and plaintiff furnished defendant with a “loaner” vehicle to use while his car was out of service.   In that connection, defendant signed a “Substitute Loaned Vehicle Agreement” in which he agreed to reimburse plaintiff “at full market value for any loss, loss of use, and physical damage of or to [the vehicle]”, and also to pay reasonable collection costs, including counsel fees, in the event it was necessary to institute legal action.   Alleging that the vehicle was returned in a damaged condition, plaintiff brought this action to recover for the cost of repairs, loss of use of the vehicle and reasonable counsel fees.   Following joinder of issue, plaintiff moved for summary judgment for the relief demanded in the complaint.   Defendant cross-moved for leave to amend his answer to interpose an affirmative defense under General Business Law § 396-z and for summary judgment thereon.   Supreme Court permitted the amendment to the answer but denied the motion and cross motion for summary judgment.   Plaintiff appeals.

Because we disagree with the fundamental premise underlying plaintiff's appeal, i.e., that General Business Law § 396-z cannot as a matter of law apply in this case, we affirm Supreme Court's orders.   General Business Law § 396-z(2) places severe limitations on the right of a “rental vehicle company” ¹ to enter into “rental agreements” ² of 30 days or less holding an “authorized driver” liable for actual damage to or loss of a “rental vehicle”.³  In this case, plaintiff claims that the loaner car did not constitute a “rental vehicle” because plaintiff charged no fee for its use.   Therefore, the argument continues, plaintiff is not a “rental vehicle company” and did not enter into a “rental agreement” within the purview of General Business Law § 396-z.

Glossed over by this facile analysis is the fact that, depending upon the nature of its relationship with nonparty Davidson Chevrolet Inc., plaintiff may very well have received indirect consideration for the letting of the loaner vehicle to defendant.   As recognized by Supreme Court, because discovery had but recently commenced at the time of plaintiff's motion, the corporate structure and ownership of those apparently related entities had not yet been ascertained.   Under the circumstances, we conclude that the summary judgment motions were premature (see, CPLR 3212[f] ) and that, in the absence of any showing of prejudice, Supreme Court did not abuse its broad discretion in permitting defendant to amend his answer (see, Hanchett v. Graphic Techniques, 243 A.D.2d 942, 943, 667 N.Y.S.2d 436;  New York State Health Facilities Assn. v. Axelrod, 229 A.D.2d 864, 866-867, 646 N.Y.S.2d 412).

ORDERED that the orders are affirmed, with costs.

FOOTNOTES

1.   “ ‘Rental vehicle company’ means any person or organization, or any subsidiary or affiliate, including a franchisee, in the business of providing rental vehicles to the public from locations in this state” (General Business Law § 396-z[1][c] ).

2.   “ ‘Rental agreement’ means any written agreement setting forth terms and conditions governing the authorized driver's use of a rental vehicle, as defined in [Vehicle and Traffic Law § 137-a]” (General Business Law § 396-z[1][b] ).

3.   A rental vehicle is one “owned by a person engaged in the business of renting or leasing vehicles which is rented or leased without a driver to a person other than the owner and is registered in the name of such owner” (Vehicle and Traffic Law § 137-a).

MERCURE, J.

CARDONA, P.J., and YESAWICH Jr., CARPINELLO and GRAFFEO, JJ., concur.