Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion for summary judgment:

In this motor vehicle negligence matter, the following motions are before the Court:

Motion Seq. 1 —Plaintiff, Diana Caban's ("Caban"), motion for partial summary judgment declaring that she bears no liability herein and dismissing all affirmative defenses and/or counterclaims against her on that basis; and the cross-motion of defendant, West Nyack Motor Cars, LLC, d/b/a Kia of West Nyack ("Kia"), for summary judgment and dismissal of the complaint on the ground that Caban's claims against it are barred by the Graves Amendment (49 U.S.C. § 30106);

Motion Seq. 3 — Third-Party Defendants', Shuaib Qureshi ("Shuaib") and Sairah Qureshi ("Sairah")(collectively "the Qureshis"), motion seeking summary judgment and dismissal of the complaint on the ground that Caban failed to sustain a "serious injury" from the underlying motor vehicle accident as is required to recover damages under Insurance Law § 5102[d]; and

Motion Seq. 4 — Kia's motion for summary judgment declaring that the Qureshis are contractually bound to indemnify Kia for any damages from the underlying accident; and the Qureshis' cross-motion for summary judgment declaring the contract's indemnity clause unenforceable.

For the reasons stated below, Kia's cross-motion to dismiss the Complaint on ground of the Graves Amendment is granted (Motion Seq. 1), and, given that Kia, the only named defendant in the first-party action, is shielded from liability herein, Caban's liability motion against it is denied, and the Complaint is dismissed. The remaining motions are denied as moot. Given that Kia's motion for summary judgment under the Graves Amendment is dispositive of all the other motions before the Court, it is discussed first.

Graves Amendment

This cause of action arises from personal injuries allegedly sustained by Caban on March 13, 2018, when a vehicle owned by Kia, contracted for use by Shuaib and operated by Sairah, came in contact with Caban's vehicle on Route 1-9, near its intersection with Hackensack Avenue, in New Jersey (NYSCEF Doc No 38). In support of the cross-motion, Kia submits Shuaib's deposition testimony (NYSCEF Doc No 100), and a signed and initialed document with the heading, "Kia Rental Agreement for Temporary Substitute Vehicle" ("Kia Agreement"), purportedly executed by one or both of the Qureshis (NYSCEF Doc No 102).

Pertinent here, Kia seeks summary judgment and dismissal of Caban's complaint on the ground that it is exempt from vicarious liability for the underlying accident by operation of the Graves Amendment (49 U.S.C. § 30106). Under the Graves Amendment, the owner of a leased vehicle will not be held vicariously liable for the negligent operation of that vehicle where the owner proves that it is engaged in the business of renting or leasing motor vehicles, and it was not otherwise negligent (Casie v Wesner, 165 AD3d 749 [2nd Dept 2018]). Caban opposes the motion asserting that the Graves Amendment is inapplicable because the vehicle Kia provided to the Qureshis was a "loaner" and not a "rental." The Qureshis also oppose arguing that the Kia [*3]Agreement and all other documents relied upon by Kia in its motion are not properly before the Court, and thus, are inadmissible precluding summary judgment.

Upon deposition Shuaib testified that he went to Kia's dealership to rent a car because the lease on his wife's vehicle expired, and she needed a vehicle (NYSCEF Doc No 100 at 21:6-19). According to Shuaib, they decided to rent or borrow a car from the Kia dealer nearby their home for the meantime because it was a good deal (id. at 18:12-19:17). He further testified that he had no other ongoing transactions with the dealership at the time (id. at 19:8-11). During his deposition, he identified the Kia Agreement (id. at 26:13-22; 27:20-23), and the "Multi-State Rental Agreement Terms and Conditions" ("Terms and Conditions") and acknowledged signing off on the former (id. at 36:16-25; 37:1-2). Notably, each party submitted a copy of both documents with their respective applications (NYSCEF Doc Nos 42, 102, 118).

Admissibility of the Kia Agreement and Terms and Conditions.

The Qureshis argue that Kia has failed to meet its burden on the motion because the Kia Agreement and Terms and Condition have not been authenticated by an affidavit of someone with personal knowledge of the documents. The argument is without merit. At his deposition, Shuaib was shown the Kia Agreement and the Terms and Conditions, was questioned about same, and acknowledged receiving the documents and initialing the former document. Such actions were sufficient for admissibility purposes (Matter of Kevelson, 228 AD3d 662, 665 [1st Dept 2024][prenuptial agreement properly authenticated under oath during deposition]; CAS Marketing & Licensing Co. v Jay Franco & Sons, Inc., 188 AD3d 522, 523 [1st Dept 2020][royalty reports authenticated during deposition used to calculate commissions rates admissible to sustain damages]; Singh v New York City Housing Authority, 177 AD3d 475 [1st Dept 2019][photographs adequately authenticated for admissibility purposes by deposition testimony]).

The above notwithstanding, since all of the parties have relied upon the same contractual documents in their motion papers (NYSCEF Doc Nos 42, 102, 118), this court may presume the authenticity of the documents absent a successful rebuttal of the presumption by a preponderance of the evidence (see CPLR § 4540-a). The Qureshi's have failed to so rebut the presumption. Thus, the Rental Agreement and Terms and Conditions are admissible for the purposes of Kia's summary judgment motion (id.).

Rental vs. Loaner.

The First Department distinguishes between vehicles that are provided as "rentals" and those provided as "loaners" for the purposes of applying the Graves Amendment (see Hall v Elrac, Inc., 52 AD3d 262 [1st Dept 2008] [rejecting "plaintiff's argument that the Graves Amendment violates equal protection by favoring car rental companies over other vehicle owners, such as taxi owners, repair shop owners who provide loaner vehicles to customers, and car dealerships that allow test drives, who also allow others to operate their vehicles"]).

There is currently a split in the Bronx County Supreme Court with at least one jurist holding that "businesses in the trade of renting or leasing motor vehicles" that provide "loaners" are covered by the Graves Amendment (see, e.g., Marshall v Barraza, 2023 NY Slip Op 34117(U) [Sup Ct, Bronx County 2023, Perez, J.]) and another holding that "the Graves [*4]Amendment does not protect the loaning of a vehicle by a car dealer without charge to a patron of a car dealership" (see, e.g., Maria v Mercedes-Benz Manhattan, Inc, 2021 NY Misc LEXIS 34119, *3-*6 [Sup Ct, Bronx Supreme 2021, Brigantti, J.]).

Shortly after the Mercedes-Benz Manhattan, Inc. decision, Justice Brigantti clarified the distinguishing factor between a "loaner" and a "rental" holding that a business that does not "assess" a "rental fee" for the use of its vehicle has provided a "loaner," which is not covered by the Graves Amendment (Hussain v Abuawwad, 2021 NY Slip Op 50826(U), *8-*9 [Sup Ct, Bronx Supreme Court 2021, Brigantti, J.]); see also Cheektowaga v Niagara Frontier Transp Authority, 82 AD2d 175, 178 FN2 [4th Dept 1981] [finding "that 'assessments' is used to mean a charge of a special payment or fee" (see third definitionof 'assess' in the American Heritage Dictionary of the English Language [1976] [emphasis in opinion]).

This split notwithstanding, the record before this Court warrants finding that the subject agreement between the parties formed a rental agreement within the ambit of the Graves Amendment protections (see 49 USC § 30106). At the threshold, the Kia Agreement contains a section for Rental Rates and Charges, below which are boxes designed for manual data entry. Critical here, to the right of a box indicating "Days" is a handwritten entry, "$38.00." There is also a "Rental Vehicle Information" section that indicates that the vehicle was to be "out" from March 9, 2018, at 4:00, until March 30, 2018, at 4:00PM. These terms are clear and unambiguous, and to be given their plain meaning (see Ellington v EMUI Music, Inc., 24 NY3d 239, 244 [2014][holding that "[w]here the terms of a contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving a practical interpretation to the language employed and reading the contract as a whole"]). Moreover, Section 2 of the Terms and Conditions, titled "Rental; Consideration; Indemnity and Warranties" commences with the express declaration: "[t]his is a contract for rental of a vehicle" (NYSCEF Doc No 102).

In light of the daily assessment and the express declaration that the Kia Agreement documents, as a whole, form a "rental" contract, this court finds that Shuaib intended to rent Kia's vehicle in exchange for $38.00 a day from March 9, 2018, through March 18, 2018. Thus, Kia is shielded from liability in this matter by the Graves Amendment because the vehicle they provided the Qureshis was a "rental" and not a "loaner." Finally, there is no evidence in the record that Kia was otherwise negligent.

Dismissing Kia's Third-party Complaint

In light of Kia's entitlement to summary judgment and dismissal of Caban's principal action against it, Kia's third-party cause of action as asserted against the Qureshis must also be dismissed. Pursuant to CPLR § 1007:

[a]fter the service of his answer, a defendant may proceed against a person not a party who is or may be liable to that defendant for all or part of the plaintiff's claim against that defendant, by filing pursuant to section three hundred four of this chapter a third-party summons and complaint with the clerk of the court in the county in which the main action is pending, for which a separate index number shall not be issued but a separate index number fee shall be collected (CPLR § 1007).

Courts examining the nature and character of third-party actions have determined that the claim between the third-party plaintiff and third-party defendant must be one rooted in indemnity or contribution (BRC Electric Corp. v Cripps, 67 AD2d 899 [2nd Dept 1979]). Stated otherwise, third-party actions are derivative of the main action, and if plaintiff's claims against the defendants have been dismissed, there is no predicate for a third-party action (Interstate Adjusters, Inc. v First Fid. Bank, NA, 251 AD2d 232, 233 [1st Dept 1998]; see also Lucci v Lucci, 150 AD2d 649 [2nd Dept 1989] [holding that "[t]he liability to be imposed upon a third-party defendant in a third-party action commenced pursuant to CPLR 1007 should arise from or be conditioned upon the liability asserted against the third-party plaintiff in the main action"]).

Applied here, in view of the dismissal of Caban's complaint against Kia, Kia's third-party complaint against the Qureshis for contractual contribution and indemnity must also be dismissed (Interstate Adjusters, 251 AD2d at 233), and all motions and cross-motions pending in the third-party action denied as moot.

Accordingly, it is hereby:

ORDERED that plaintiff Diana Caban's motion for partial summary judgment on the issue of the liability of defendant West Nyack Motor Cars, LLC d/b/a Kia of West Nyack herein is DENIED (Motion Seq. 1); it is further;

ORDERED that defendant West Nyack Motor Cars, LLC d/b/a Kia of West Nyack's cross-motion for summary judgment dismissing the complaint upon applicability of the Graves Amendment is GRANTED (Motion Seq. 1); it is further;

ORDERED that, upon dismissal of Diana Caban's Complaint against defendant West Nyack Motor Cars, LLC d/b/a Kia of West Nyack, the third-party action herein is hereby DISMISSED; it is further;

ORDERED that, upon dismissal of the Complaint and the Third-Party action, the remaining motions and cross-motions challenging the seriousness of the Plaintiff's injuries under Insurance Law § 5102[d] (Motion Seq. 3); and asserting a contractual obligation for Third-Party Defendants, Shuaib Qureshi and Sairah Qureshi, to indemnify defendant, West Nyack Motor Cars, LLC d/b/a Kia of West Nyack, and challenging the validity of the indemnification clause are all DENIED as moot; and it is further;

ORDERED that defendant/third-party plaintiff West Nyack Motor Cars, LLC d/b/a Kia of West Nyack shall serve a copy of this Order with Notice of Entry within thirty (30) days of entry of this Order.

The foregoing constitutes the Decision and Order of the Court.