The opinion
Bluvshteyn v EAN Holdings, LLC
2024 NY Slip Op 33597(U)
October 3, 2024
Supreme Court, Kings County
Docket Number: Index No. 502557/2020
Judge: Wavny Toussaint
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: KINGS COUNTY CLERK 10/07/2024 INDEX NO. 502557/2020
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/08/2024
At an IAS Term, Part 70 of the Supreme Court
of the State of New York, held in and for the
County of Kings, at the Courthouse, at 360
Adams Street, Brooklyn, New York, on the
3n:.\ day of October, 2024.
PRESENT:
HON. WAVNYTOUSSAINT,
Justice.
BORIS BLUVSHTEYN and ANNA BLUVSHTEYN,
Plaintiffs, Index No.: 502557/2020
-against-
ORDER
EAN HOLDINGS, LLC d/b/a NATIONAL CAR
RENTAL, NATIONAL CAR RENTAL SYSTEM, INC.,
and DAUREN NURTAKANOV,
Defendants.
The following papers numbered 1 to read herein Papers Numbered
Notice of Motion/Order to Show Cause/
and Affidavits (Affirmations) Annexed 118-149
Cross Motion and Affidavits (Affirmation) Annexed
Answers/Opposing Affidavits (Affirmations) 153-161
Reply Affidavits (Affirmations) 163-164
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, defendants EAN Holdings, LLC d/b/a National Car Rental
(EAN), National Car Rental System, Inc. (National Car) and Dauren Nurtakanov (Nurtakanov)
move (Seq. 07) for an order, pursuant to CPLR § 3212, granting summary judgment
dismissing plaintiffs complaint. EAN and National Car argue they are insulated from
liability under both the Graves Amendment and New York Vehicle and Traffic Law §388.
1 of 5
[* 1]
FILED: KINGS COUNTY CLERK 10/07/2024 INDEX NO. 502557/2020
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/08/2024
EAN, National Car, and Nurtakanov also argue both plaintiffs failed to meet the "serious
injury" threshold under Insurance Law §5102(d). Plaintiffs opposed the motion.
Background
Insofar as set forth in the complaint, plaintiffs alleged they both suffered serious
injuries when, on November 9, 2020 at Exit 10 of the Staten Island Expressway, in Staten
Island, New York., their vehicle was struck by the rented vehicle operated by Nurtakanov.
Plaintiffs assert claims against the rental companies EAN and National Car alleging each
is vicarious liability for the negligence ofNurtakanov. The rented vehicle was owned by
non-party Enterprise Rent-A-Car Canada Company, Inc.
Discussion
The Graves Amendment and New York Vehicle and Traffic Law §388
EAN and National Car argue they are insulated from liability under the Graves
Amendment and New York Vehicle and Traffic Law §388. The Graves Amendment
provides in part, that:
An owner of a motor vehicle that rents or leases the vehicle to a person (or
an affiliate of the owner) shall not be liable under the law of any State or
political subdivision thereof, by reason of being the owner of the vehicle
(or an affiliate of the owner), 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
(1) the owner (or an affiliate of the owner) is engaged in the trade or
business of renting or leasing motor vehicles; and
(2) there is no negligence or cril).linal wrongdoing on the part of the
owner (or an affiliate of the bwner (49 U.S.C. § 30106).
New York Vehicle and Traffic Law §388 provides in part, that:
2
2 of 5
[* 2]
FILED: KINGS COUNTY CLERK 10/07/2024 INDEX NO. 502557/2020
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/08/2024
Every owner of a vehicle used or operated in this state shall be liable and
responsible for death or injuries to person or property resulting from
negligence in the use or operation of such vehicle ... (emphasis supplied)
The evidence submitted by EAN, National Car, and Nurtakanov including among
other things, plaintiffs' and Nurtakanov's deposition transcripts, the Risk Specialist's
affidavit (with supporting records), the marked deposition photos, and the arguments
presented related thereto, established prima facie, that EAN and National are engaged in
the business of renting or leasing motor vehicles and that the subject vehicle was rented to
Nurtakanov. EAN and National Car also established they did not own the rented vehicle
which, in any case, did not have a prior history of complaints or maintenance issues, and
was otherwise in good working order. EAN and National Car further established
Nurtakanov was not their employee.
Based on the record, EAN and National Car established, prima facie, that they are
insulated from liability by operation of the Graves Amendment and New York Vehicle and
Traffic Law §388 (Keys v PV Holding Corp., 205 AD3d 787, 788-789 [2d Dept 2022];
Harewood v Zip Car, 189 AD3d 1192, 1193 [2d Dept 2020]). Plaintift's proof in
opposition, including among other things, plaintiffs' affidavits and the arguments based
thereon, failed to raise triable issues of fact with respect to EAN and National Car's prima
facie showing. For these reasons, the motion (Seq. 07) is granted as to EAN and National
Car and the complaint is dismissed as to them.
The "Serious Injury" Threshold and Defendant Nurtakanov
Nurtakanov seeks dismissal of the complaint on the basis that plaintiffs do not meet
the "serious injury" threshold under the Insurance Law. Nurtakanov's proof included,
3
3 of 5
[* 3]
FILED: KINGS COUNTY CLERK 10/07/2024 INDEX NO. 502557/2020
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/08/2024
among other things, plaintiffs' Bill of Particulars, plaintiffs' and Nurtakanov's deposition
transcripts, various medical records and the IME reports for plaintiffs. This proof shows
that the IME doctors concluded plaintiffs' injuries were casually related to the accident,
that plaintiffs exhibited restricted range of motion, and that the range of motion testing
performed by the IME doctors, in any event, did not consider any variations from normal
when arriving at plaintiffs' testing results. Furthermore, the IME radiologist's report, in
contrast to that of the examining physicians, concluded that plaintiffs' injuries were
degenerative and not casually related to the accident. Together, the submitted proof failed
to establish, prima facie, that plaintiffs did not sustain serious injuries as a result of the
accident. Resolution of this issue warrants a jury's determination, as it is not resolved on
Nurtakanov's proof (Owens v Elrac LLC, 213 AD3d 684, 685 [2d Dept 2023]; Herrin v
Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Under these
circumstances, the Court need not consider the sufficiency of plaintiffs' opposition papers
(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). For these reasons, the
motion (Seq. 07) is denied as to Nurtakanov.
Conclusion
Accordingly, it is hereby
ORDERED that motion (Seq. 07) is granted to the extent the complaint is dismissed
only as to EAN Holdings, LLC d/b/a National Car Rental and National Car Rental System, Inc.
4
4 of 5
[* 4]
FILED: KINGS COUNTY CLERK 10/07/2024 INDEX NO. 502557/2020
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/08/2024
The action is severed as to defendant Dauren Nurtakanov. The caption is amended
to read as follows:
BORIS BLUVSHTEYN and ANNA BLUVSHTEYN,
Plaintiffs, Index No.: 502557/2020
-against-
DAUREN NURTAKANOV,
Defendant.
All remaining arguments raised on the motion, and evidence submitted by the
parties in connection thereto, have been considered by this Court, and are denied.
This constitutes the decision and order of the Court.
ENTER
J.S.C.
BON:WAVNYTOUSSAINT
,,._. 1. s. C.,.
~
~
!'t:: z
C)
C>
..... .,.,(")
(I)
("")
t
_o
s:: ri
f'l'l-t
)> 0-<
(")
r-
9 f'l'I:
-·
4
. , ::0
:J::..
5 . ....,: .......
,._
5 of 5
[* 5]