Everett Halsey, Plaintiff, v. PENSKE AUTOMOTIVE GROUP INC PENSKE LEASING AND RENTAL BARNWELL HOUSE OF TIRES INC BARNWELL HOUSE OF TIRES OF NASSAU INC ABC CORP (2026)

The following papers filed electronically were read and considered in connection with the motion by Defendants Penske Automotive Group, Inc. and Penske Leasing and Rental (Mot. Seq. #1) for an Order pursuant to CPLR § 3211(a)(1) and (7) and § 3212 dismissing all claims asserted against them in the Verified Complaint:

Notice of Motion, Affirmation in Support, Statement of Material Facts, and Exhibits A-D Doc. 19-27

Affirmation in Opposition, Statement of Material Facts, and Exhibits 1-2 Doc. 30-31

Reply Affirmation and Exhibit E Doc. 33-34

Background and Procedural History

Plaintiff Everett Halsey ("Plaintiff") brought this action to recover for personal injuries allegedly sustained on September 3, 2021, on Neeleytown Road, one mile west of State Route 208 in the Town of Montgomery, New York, when his vehicle was involved in an accident with a 2020 Freightliner bearing New York State registration number 7582MN (the "Vehicle") operated by Defendant Lamont Cornelius Riggins ("Riggins"). The subject vehicle is owned by Defendant Penske Automotive Group, Inc. ("Penske"). Penske is in the trade or business of leasing motor vehicles, including long-term leases. Pursuant to a long-term Vehicle Lease Service Agreement, dated on or about September 21, 2004, Penske leased to Defendant Barnwell House of Tires, Inc. ("Barnwell") Kane Freight Lines vehicles for its fleet. On or about January 17, 2019, Penske and Barnwell entered into a Vehicle Lease Service Agreement ("Penske-Barnwell Lease") whereby Penske leased Barnwell the subject Vehicle. At the time of the accident Penske did not use, operate, control or possess the Vehicle. Riggins was not and has never been an employee, agent, servant of Penske.

The action was commenced on June 26, 2024, by Plaintiff filing and serving the Summons and Verified Complaint, naming Defendants Riggins, Penske, and Barnwell (when collectively referred "Defendants").¹ On September 6, 2024, issue was joined when Defendants filed an Answer to the Verified Complaint. On July 2, 2025 Plaintiff served his Verified Bill of Particulars. On August 4, 2025, the Court so-ordered a Preliminary Conference Order, setting forth the parties agreed upon discovery schedule. Both parties acknowledge there has been no significant discovery in this matter and all depositions are outstanding. Note of Issue has not been filed in this action.

On December 31, 2025, prior to the completion of discovery and filing of the Note of Issue, Penske filed the instant motion for an Order pursuant to CPLR § 3211(a)(1) and (7) and § 3212 dismissing the claims asserted against it in the Verified Complaint, on the grounds that Plaintiff cannot maintain a cause of action against Penske under the Graves Amendment, which affords Penske immunity from any liability on Plaintiff's claims of negligence. Plaintiff opposes the motion.

The Motion

Penske argues that, as the owner and lessor of the Vehicle involved in the accident, it cannot be held vicariously liable for the actions of driver Riggins, an employee of lessee Barnwell, because the Vehicle that was operated at the time of the accident was being operated pursuant to the Penske-Barnwell Lease. Penske contends that, as a company engaged in the business of leasing or renting motor vehicles, they are immune from liability for acts of its vehicle lessees that cause injuries resulting from the negligent use or operation of the leased vehicle.

Penske argues the documentary evidence establishes Penske, as the owner of the leased Vehicle involved in the accident, satisfies both elements affording Penske legal immunity under the Graves Amendment: (i) it is engaged in the trade or business of renting or leasing motor vehicles, and (ii) it engaged in no negligence or criminal wrongdoing contributing to the accident. As to the second prong, Penske argues Plaintiff does not claim that Penske acted criminally with respect to the motor vehicle accident. Further there are no allegations that Penske negligently maintained, inspected, or repaired the subject vehicle or that Penske negligently entrusted the subject vehicle to Riggins. Penske argues the documentary evidence establishes Penske did not use, operate, control, or possess the subject vehicle on the date of the accident. Moreover, Riggins is not now, and has never been an employee, agent, servant or lessee of Penske. As such, Penske argues both prongs of Graves Amendment preemption are satisfied.

In support of its motion, Penske relies on the pleadings including the Verified Complaint and Plaintiff's Bill of Particulars, as well as the Affidavit of Karen Rea, a Senior Litigation Claims Examiner for Penske ("Rea Affidavit"), who confirms that on the date of the accident, the Vehicle was leased by Penske to Barnwell under the Penske-Barnwell Lease and that Penske was in the business of leasing vehicles. Ms. Rea further affirms the Penske-Barnwell Lease provided for Penske leasing its Kane Freight Lines vehicles for Barnwell's fleet, and the Lease was in full force and effect on the date of the alleged accident.

In opposition, Plaintiff argues Penske's motion must be denied because it fails to conclusively establish that Plaintiff has no cause of action. Plaintiff challenges the Rea Affidavit, which he argues fails to address the Maintenance and Repair section of the Penske-Barnwell Lease which provides Penske was responsible for all repairs and maintenance of the Vehicle. Plaintiff contends the Rea Affidavit failed to address any of the maintenance and repair provisions in the Penske-Barnwell Lease or affirm that Penske complied with these provisions, all of which Plaintiff argues precludes Penske's motion for summary judgment.

Plaintiff also argues that Penske's motion for summary judgment must be denied as premature since the parties have not had a reasonable opportunity to conduct discovery prior to the determination of summary judgement. Here, Plaintiff contends Penske is seeking summary judgment prior to the exchange of any discovery between the parties and Plaintiff will not have the opportunity to discover facts that may support his claims. Plaintiff asserts, without discovery, the Court will be required to make the issue determination without sufficient evidence as to whether the Vehicle was in proper working order and that there were no maintenance concerns.

In Reply, Penske refutes Plaintiff's claims there are triable issue of fact as to Penske's negligent maintenance and repair of the Vehicle. Penske argues the Verified Complaint does not even allege negligent maintenance or repair as a cause of the accident. Plaintiff's Verified Bill of Particulars also does not allege any negligence maintenance as a cause of the accident, thus Penske contends the argument that the motion should be denied based on maintenance must be rejected. Penske argues Plaintiff cannot now create a triable issue of fact by arguing negligent maintenance. Penske further argues the cases relied on by Plaintiff, applying the "negligent maintenance" exception to the Graves Amendment, are factually distinguishable and therefore inapplicable. Penske also submits the Affidavit of William Egan ("Egan Affidavit"), an employee with Barnwell who affirms his review of Barnwell's records show no maintenance on the Vehicle was performed by Penske.

Penske further contends Plaintiff's prematurity claim must be rejected as it is premised on speculation that additional evidence will be uncovered, rather than a cognizable claim as to what that evidence could be. While negligent maintenance and repair can be an exception to the Graves Amendment to hold a lessor responsible, Penske argues that is not the case here as there is no allegation that any negligent maintenance or repair to the Vehicle caused the accident.

Discussion

Pursuant to CPLR § 3211(a)(7) a party may move for judgment dismissing one or more causes of action asserted against them on the ground the pleading fails to state a cause of action. "When a party moves to dismiss a complaint pursuant to CPLR § 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action." Sokol v. Leader, 74 AD3d 1180, 1180-1181 (2d Dept. 2010). A complaint is afforded liberal construction on a motion to dismiss pursuant to CPLR § 3211(a)(7) and the Court must "accept the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit with any cognizable legal theory." Leon v. Martinez, 84 NY2d 83, 87-88 (1994); See also, Sokol v. Leader, supra at 1181. The court must afford a plaintiff the benefit of all favorable inferences which can be drawn from the pleading without injecting the court's opinion of whether a plaintiff can ultimately establish the truth of the allegation before the trier of fact. See, 219 Broadway Corp. v. Alexander's Inc., 46 NY2d 506, 509 (1979); EBCI, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005).

Upon the submission of evidentiary material in support of such a motion, 'the question becomes whether the plaintiff has a cause of action, not whether the plaintiff stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate.' " Klostermeier v. City of Port Jervis, 200 AD3d 866, 867-868 (2d Dept. 2021) (quoting Agai v. Liberty Mut. Agency Corp., 118 AD3d 830, 832 [2d Dept. 2014]); see also B & B Maintenance Services, Inc. Town of Oster Bay, 228 AD3d 808 (2d Dept. 2024).

A court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR § 3211(a)(1) and (7), but the evidence submitted must establish conclusively that a plaintiff has no cause of action. Bokhur v. GTI Retail Holdings, Inc., 94 AD3d 682, 683 (2d Dept. 2012); Sokol, supra 74 AD3d at 1181; You Chen v. Kupoint (USA) Corporation, 160 AD3d 787 (2d Dept. 2018). "Affidavits submitted by a defendant will almost never warrant dismissal under CPLR § 3211 unless they establish conclusively that [the plaintiff] has no cause of action." Bokhur, supra 94 AD3d at 683 (quoting Sokol, supra, at 1181). "To constitute documentary evidence, the evidence must be 'unambiguous, authentic, and undeniable.' " Phillips v. Taco Bell Corp., 152 AD3d 806 (2d Dept. 2017) (quoting Granada v. Condominium III Assn. v. Palomino, 78 AD3d 996, 997 [2d Dept. 2010]). Although the facts pleaded are presumed to be true and are accorded every favorable inference, "factual claims that are flatly contradicted by the record are not entitled to any such consideration". Riback v. Margulis, 43 AD3d 1023, 1023 (2d Dept. 2007); see Camille v. Federation of Prot. Welfare Agencies, Inc., 233 AD3d 747, 749 (2d Dept. 2024).

Penske moves to dismiss pursuant to CPLR §§ 3211(a)(1) and (7) and § 3212, claiming that the Federal Transportation Equity Act of 2005, 49 U.S.C. § 30106, commonly referred to as the "Graves Amendment", protects it from liability that would otherwise be allowed under Vehicle & Traffic Law § 388. The Graves Amendment "prohibits imposition of vicarious liability on vehicle lessors for injuries resulting from the negligent use or operation of the leased vehicle." Jones v. Bill, 10 NY3d 550, 553 (2008). Specifically, the Graves Amendment states that

"[a]n owner of a motor vehicle that rents or leases the vehicle to a person . . . shall not be liable under the law of any State . . ., by reason of being the owner of the vehicle . . ., 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 ... the owner . . . is engaged in the trade or business of renting or leasing motor vehicles; and . . . there is no negligence or criminal wrongdoing on the part of the owner."

See, 49 USC § 30106 [a].

"In order to claim immunity to [sic] vicarious liability under the Graves Amendment, the owner of the subject vehicle must be 'engaged in the trade or business of renting or leasing motor vehicles'; the subject vehicle must have been 'rent[ed] or lease[d] . . . to a person'; and 'harm to persons or property' must have occurred 'during the period of the rental or lease'. If these conditions are met, the statutory immunity attaches unless there is 'negligence or criminal wrongdoing on the part of the owner'." Luma v. Elrac, Inc., 19 Misc 3d 1138(A) (Sup. Ct., Kings Co. 2008).

Penske has established through documentary evidence that, as the owner of the leased vehicle involved in the accident, it is entitled to the protections of the Graves Amendment because it is in the business of leasing motor vehicles and there is no allegation by Plaintiff that Penske engaged in any negligence or criminal wrongdoing contributing to the accident, thus affording it legal immunity and requiring dismissal of all claims. See, DeRodriguez v. EAN Holding, LLC, 240 AD3d 665 (2d Dept. 2025); White v. U-Haul, Co. of Ariz., 226 AD3d 851 (2d Dept. 2024); Dowd v. Kharieh Bros., Inc., 216 AD3d 739 (2d Dept. 2023). In addition to the pleadings and Verified Bill of Particulars, Penske submits affidavits from employees of Penske and Barnwell, the certificate of title, and the Penske-Barnwell Lease, all demonstrating that at the time of the accident the Lease of the Vehicle was in full force and effect; that Penske did not use, operate, control, or possess the Vehicle; and that Riggins was never an employee, agent, servant or lessee of Penske.

The claims against Penske as pled in the Verified Complaint are all predicated on allegations of vicarious liability against Penske for the acts of alleged negligence by driver Riggins, an employee of lessee Barnwell. There are no allegations of negligence or criminal wrongdoing against Penske related to the Vehicle. A plain reading of the Verified Complaint show there are no allegations as to negligent maintenance or repair to the Vehicle, the allegations focus on the negligent operation of the Vehicle. Plaintiff argues in his opposition papers that he did sufficiently raise a negligence claim against Penske, citing paragraph 37 of the Verified Complaint which alleges. "The contact and injuries alleged herein were caused by the negligent, wanton, reckless and careless acts of the Defendants herein." See, Verified Complaint par. 37. These general allegations of negligence cannot be construed, even liberally as required for determining this motion to dismiss, as stating a claim of negligent maintenance or repair against Penske. See, White v. U-Haul, Co. of Ariz., 226 AD3d 851 (2d Dept. 2024) (general allegations of negligent "operation, maintenance, management, and control" of the rental vehicle against defendant U-Haul insufficient to defeat dismissal of action).

Rather than focusing on this general paragraph as Plaintiff suggests, the analysis should instead be directed to paragraph 38 of the Verified Complaint, which sets forth specific allegations of negligence - albeit generally - against all defendants. Here, too, there are no allegations of negligent maintenance or repair against any Defendants, only allegations relating to the negligent operation of the vehicle. See, Verified Complaint par. 38. Penske (not Plaintiff) identifies and refutes the allegations "in failing to properly keep and maintain the motor vehicle" as lacking in elaboration and cannot be construed as an allegation against Penske of negligent maintenance or repair. The Court agrees. In fact, given the context of paragraph 38 that sets forth allegations of negligent operation of the Vehicle, a fair reading of these allegations is the failure to "keep and maintain the motor vehicle" in the proper lane or roadway.

In support of dismissal, Penske also references Plaintiff's Bill of Particulars which also fails to set forth any claims of negligent maintenance or repair of the Vehicle by any of the Defendants as causing or contributing to the accident. A bill of particulars is designed to amplify a pleading by providing greater detail as to the substance of the allegations, and what the party making them intends to prove. Marsala v. Weintraub, 208 AD3d 689 (2d Dept. 1994). In his Bill of Particulars served in this action, Plaintiff was given the opportunity to amplify his claims in greater detail and could have included a claim of negligent maintenance or repair to the Vehicle, but did not. Instead, as argued by Penske, Plaintiff's counsel for the first time in this litigation raises this claim in her affirmation in opposition to Penske's motion. When an issue is not raised in either the Complaint or Bill of Particulars, and is instead raised in opposition to summary judgment, judgment as a matter of law is warranted. See Alvarez v. Prospect Hosp. 68 NY2d 320 (1986) (plaintiff failed to include theory of liability in pleadings and bill of particulars and later raised it in opposition to defendant's motion for summary judgment).

The documentary evidence submitted by Penske conclusively establishes the Graves Amendment applies to this matter, entitling Penske to immunity from liability for Plaintiff's alleged injuries from an accident involving a Penske-leased vehicle driven by Riggins, a person over whom Penske had no control or operation. Inasmuch as the claims set forth in the Verified Complaint alleged negligence in the operation of the Vehicle, there do not appear to be facts essential to justify opposition to the motion. (see Parpounas v. Ohagan, 216 AD3d 985, 987-988 [2d Dept. 2023]).

In opposition, Plaintiff argues the motion is premature, but he submits no evidence refuting the documentary evidence submitted by Penske. Instead, the gravamen of Plaintiff's opposition is that there are facts that could be revealed during discovery regarding maintenance and repair of the Vehicle which justify opposition to the motion. These speculative allegations made by Plaintiff do not constitute a showing that facts essential to justify opposition to the motion exist and could be revealed during discovery (CPLR § 3211[d]; Karpovich v. City of New York, 162 AD3d 996, 998 [2d Dept. 2018]).

Plaintiff's claims that Penske's motion is premature are without merit. CPLR § 3211(e) provides that a motion pursuant to Section 3211(a)(1) and (7) may be made at any time. Stolarski v. Fam. Servs. of Westchester, Inc., 110 AD3d 980, 982 (2d Dept. 2013). A motion made pursuant to Section 3211(a)(1) and (7) relies on documentary evidence and the face of the pleadings, rather than on any discovery, and is therefore not premature. The correct standard of review, as discussed above, relates to the showing by Penske of entitlement to legal immunity under the Graves Amendment and because Plaintiff's claims are predicated on allegations of vicarious liability against Penske for the acts of alleged negligence by driver Riggins, dismissal of the action against Penske is warranted.

As to Plaintiff's arguments concerning the premature granting of summary judgment before the completion of discovery, the Court likewise finds these arguments without merit. The primary relief in the Penske motion is dismissal pursuant to CPLR § 3211(a)(1) and (7), with the alternative relief being judgment as a matter of law pursuant to CPLR § 3212. In only citing the applicable standard of review for summary judgment motions, Plaintiff's opposition presupposes the Court intends to treat the motion as one for summary judgment while disregarding the standard applicable to the primary basis for relief — dismissal pursuant to CPLR § 3211. Indeed, while many dismissal motions, filed pre-answer, arise in matters where key information which can impact a movant's position is not yet known to the parties, that is not the case here. Plaintiff's Verified Complaint fails to allege any claim of negligent maintenance of the Vehicle against the Defendants, including Penske, and therefore no further discovery is necessary to reach the merits of this claim.

Plaintiff also argues summary judgment is inappropriate. Plaintiff argues that Penske's motion fails to address its maintenance and repair obligations under the Penske-Barnwell Lease and requires the parties to conduct further discovery to determine if the condition of the Vehicle caused the accident. Based upon this absence of maintenance and repair records, Plaintiff argues Penske fails to eliminate any triable issues of fact. While these arguments could be relevant to the opposition of a motion for summary judgment, as discussed above, the Court need not convert the instant motion to one for summary judgment to reach its determination to dismiss all claims against Penske. In reviewing the submissions herein, the Court declines to convert the instant dismissal motion as one for summary judgment pursuant to CPLR § 3212. See, Francisco v. Kiara Foods, Inc., 197 AD3d 563 (2d Dept. 2021) (not improvident for Court to exercise its discretion in declining to convert dismissal motion into motion for summary judgment, as such motion would have been premature); CPLR § 3212(f).²

Therefore, utilizing the standard of review for dismissal pursuant to CPLR § 3211 as discussed herein, this Court finds the Penske has satisfied its burden, warranting dismissal of the claims against it under the Graves Amendment. Accordingly, the claims asserted against Penske in the Verified Complaint are dismissed.

Accordingly, based on the foregoing it is hereby

ORDERED that the motion by Defendants Penske Automotive Group, Inc. and Penske Leasing and Rental (Mot. Seq. #1) is hereby GRANTED in its entirety and as to these Defendants, all claims are dismissed, and it is further

ORDERED that movant shall serve a copy of this Order with Notice of Entry within five (5) days hereof by NYSCEF, and it is further

ORDERED that the caption of this action shall be amended to reflect the elimination of Defendants Penske Automotive Group, Inc. and Penske Leasing and Rental, and such amended caption shall be used for all filings for the remainder of the pendency of this action, and it is further

ORDERED that counsel for the remaining parties shall appear in person for the previously scheduled compliance conference on July 14, 2026 at 9:30 a.m.

The foregoing constitutes the Decision and Order of the Court.

Dated: July 13, 2026

E N T E R:

HON. KYLE C. McGOVERN, J.S.C.

FOOTNOTES

1.   Although not specially stated in his Verified Complaint, Plaintiff presumably named ABC, Corp. as an unknown and fictitious defendant, to ensure he named the correct Defendant. Based upon the pleading and the joinder of issue it appears Plaintiff has named all Defendants.

2.   Even if the Court were to convert this dismissal motion as one of summary judgement under CPLR § 3212, the result would be the same, in absence of a stated claim for negligent maintenance or repair to the Vehicle by Penske, there can be no triable fact to be brought to a jury, warranting dismissal of all claims against Penske. See, DeRodriguez v. EAN Holding, LLC, 240 AD3d 665 (2d Dept. 2025) (summary judgment properly granted under the Graves Amendment where plaintiff failed to raise triable issue of fact as to negligent maintenance contributing to the collision at issue).

Kyle C. McGovern, J.