The opinion
Adamson v Leopold
2025 NY Slip Op 30018(U)
January 6, 2025
Supreme Court, New York County
Docket Number: Index No. 154152/2021
Judge: James G. Clynes
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: NEW YORK COUNTY CLERK 01/06/2025 05:07 P~ INDEX NO. 154152/2021
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 01/06/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JAMES G. CLYNES PART 22M
Justice
---------------------------------------------------------------------------------X INDEX NO. 154152/2021
GRANTIEAH I ADAMSON,
MOTION DATE 02/21/2023
Plaintiff,
MOTION SEQ. NO. 001
- V -
ROBIN LEOPOLD, KEVIN FLOWERS and
DECISION+ ORDER ON
MERCEDES-BENZ MANHATTAN, INC.,
MOTION
Defendants.
---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 00 I) 28, 29, 30, 31, 32, 33, 39, 40,
41, 44, 45, 46, 48
were read on this motion to/for JUDGMENT - SUMMARY
This is a personal injury action brought by plaintiff Grantieah I Adamson (Adamson) in
connection with a motor vehicle action. Defendants are Robin Leopold (Leopold), the alleged
owner of a motor vehicle bearing license plate number CSH8061; Kevin Flowers (Flowers), the
employee at Mercedes-Benz Manhattan, Inc. (MBM Inc.) who allegedly operated the vehicle at
the time of the accident; and MBM Inc. The accident occurred on October 14, 2020, on a public
roadway located in front of 555 West 57th Street (in New York County), when the vehicle came
into contact with a pedestrian, Adamson, and allegedly caused her physical injuries. Defendant
Leopold interposed an answer with crossclaims; defendants Flowers and MBM Inc. also filed an
answer. Defendant Leopold currently moves for an order pursuant to CPLR 3212 for summary
judgment and dismissal of the complaint and any crossclaims as against her on the ground that she
did not breach a duty to plaintiff and for summary judgment on her crossclaims for indemnification
against co-defendants Flowers and MBM Inc. Flowers and MBM Inc. do not oppose the motion.
In support of her motion, Leopold provides an affidavit from non-party, Kenneth Leopold
(Mr. Leopold), her husband (NYSCEF Doc. No. 31 ). The affidavit provides that Leopold owns
the 2020 Mercedes Benz bearing New York license plate CSH806 l, which Mr. Leopold brought
154152/2021 ADAMSON, GRANTIEAH I vs. LEOPOLD, ROBIN ET AL Page I of6
Motion No. 001
1 of 6
[* 1]
[FILED: NEW YORK COUNTY CLERK 01/06/2025 05:07 P~ INDEX NO. 154152/2021
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 01/06/2025
to MBM Inc. on October 14, 2020, to have the windshield camera calibrated (id., Jrlr 2, 8,11). He
spoke with "Mr. Pires," and left the key with him (id., Jr 12). Mr. Leopold represents that he was
not explicitly told that the vehicle would be driven outside of MBM Inc., located at 770 11th
A venue, as a part of the service, and that he did not give express or implied consent for MBM
Inc.'s employees to do so (id., Jrlr 4, 13). Mr. Leopold explains that on the following day, he went
to pick up the vehicle, paid the invoice, and left. He states that he was not informed that a car
accident had occurred while the car was in the possession of MBM Inc. Allegedly, he found out a
few days later, when he received communication from the car insurance company. Mr. Leopold
then contacted MBM Inc. to inquire about the accident and a service representative briefly
informed him about the incident (id., Jrlr 14, 15, 16, 17, 18, 19). At this point, Mr. Leopold explains,
he also inspected the vehicle but did not see any damage. He followed up by requesting a copy of
the accident Police Report from the DMV website. Upon inspecting the Police Report, he learned
that Flowers was the employee at MBM Inc. who was operating the vehicle at time of the accident
(id., at lrlr 20, 21 ).
Leopold attaches a copy of her deposition transcript in support of her motion (NYSCEF
Doc. No. 30). At the deposition, she explained that although she has a driver's license, she is not
the primary driver of her vehicle; that she uses her vehicle infrequently; and that her husband is
the driver of her vehicle, and he handles most maintenance and issues with the car (Id., p 11 lines
23-25, p 16 lines 5-7). She explained that her husband dropped off and picked up her vehicle at
MBM Inc. (id., p 19 lines 15-17, p 22 lines 20-22), and that her husband notified her of the incident
(id., p 12 lines 6-14). She stated that she did not know whether the dealership told her husband that
the vehicle would require a test drive because she did not communicate with anyone from MBM
Inc. Instead, all communications were made to her husband (id., p 17 lines 22-25, p 18 lines 1-5).
Leopold also attaches a copy of Flowers' deposition transcript (NYSCEF Doc. No. 33).
Flowers represented that he has worked for MBM Inc. for over 15 years as a Master Certified
Technician (id., p 10 lines 2-7). He explained that at the time of the incident, he was operating
Leopold's vehicle because he was assigned the job, and therefore had authorization to do so (id.,
p 20 lines 18-24, p 21 lines 5-9). He explained that at the time of the incident he was parked on
154152/2021 ADAMSON, GRANTIEAH l vs. LEOPOLD, ROBIN ET AL Page2 of6
Motion No. 001
2 of 6
[* 2]
[FILED: NEW YORK COUNTY CLERK 01/06/2025 05:07 P~ INDEX NO. 154152/2021
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 01/06/2025
58th Street by the BMW driveway (id., p 16 lines 2-13, p 27 lines 5-14, p 28 lines 13-16). Flowers
stated that he put the car in reverse because the person in front of him asked him to move the car
back (id., p 32 lines 2-6); and while slowly moving in reverse, he looked back from the left side
mirror and saw a person on the left side of the car, and then pushed the brake. He explained the
person struck the car with her hand (id., p 37 lines 13-20, p 89 lines 20-23). Afterwards, he stated,.
the woman continued to walk up the street, but she returned to Leopold's car approximately 10-15
minutes later. Police officers arrived and a police report was filed (id., p 53 lines 5-25, p 57 lines
22-25). At the deposition, Flowers explained that he did not observe the woman having issues
walking after the incident (id., p 92 lines 19-24). Flowers stated that he did not speak with Leopold
prior to or after the incident (id., p 23 lines 9-12).
Defendant argues that the facts of this case fall under a bailment theory. Specifically,
defendant asserts that since MBM Inc. had sole and exclusive possession of the vehicle while it
was being serviced, including during the incident, and MBM Inc.' s negligence proximately caused
plaintiffs injuries, Leopold does not owe a legal duty to plaintiff. Furthermore, since Flowers is
an employee of MBM Inc., MBM Inc. should be held vicariously liable through the common law
theory of respondeat superior, because the negligent act was committed during the course of his
employment. Defendant concludes that MBM Inc. and Flowers are the tortfeasors; therefore, they
are the proper defendants. As the passive owner, Leopold argues that she should be indemnified.
In opposition, plaintiff argues that Leopold's husband acted as her agent when he delivered
the car to MBM Inc., and when he gave the keys to Mr. Pires, he gave implied consent for MBM
Inc. to drive the car. Furthermore, plaintiff argues that Leopold has a non-delegable duty under
New York Vehicle and Traffic Law ("YTL") 388. Plaintiff asserts that the statute expands the
scope of liability of the vehicle owner beyond common law vicarious liability, and under the
expanded scope, Leopold should be held vicariously liable. Plaintiff concludes that summary
judgment is not appropriate here because material issues of fact exist as to whether Leopold gave
permission and authority to co-defendants to operate her vehicle.
In reply, Leopold argues that she has established her entitlement to summary judgment.
She states that even when viewing facts in the light most favorable to plaintiff, plaintiffs argument
154152/2021 ADAMSON, GRANTIEAH I vs. LEOPOLD, ROBIN ET AL Page 3 of6
Motion No. 001
3 of 6
[* 3]
[FILED: NEW YORK COUNTY CLERK 01/06/2025 05:07 P~ INDEX NO. 154152/2021
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 01/06/2025
that defendant did not expressly limit co-defendants from operating the vehicle is unavailing
because there is evidence supporting that defendant relinquished possession and control of her
vehicle when her husband turned over the keys to co-defendants.
Under the common-law rule, a vehicle owner could only be held liable for the negligence
of a driver under agency theory, or respondeat superior. However, this has been altered by
YTL 388 (see Morris v Snappy Car Rental, 84 NY2d 21 [1994]). Section one of the statute
provides, in relevant part:
"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, in the business of such owner or otherwise, by
a person using or operating the same with the permission, express or implied of
such owner."
The statute establishes a rebuttable presumption that an operator of a vehicle has the owner's
permission to do so. It is construed liberally to expand an owner's liability, so that a party with a
personal injury caused by the operator of a vehicle can also have recourse against the owner, who
may be financially responsible (see Hardeman v Mendon Leasing Corp., 87 AD2d 232, 236-237
[l st Dept 1982]). To overcome the rebuttable presumption, the owner must present substantial
evidence that the vehicle was operated without consent (Murdza v Zimmerman, 99 NY2d 375,380
[2003]). Without more, the vehicle owner's uncontradicted testimony that the vehicle was being
operated without their consent, does not overcome the presumption (Hernandez v Key, 2016 NY
Slip Op 30249[U] [Sup Ct, Bronx County 2016]). Furthermore, "disavowals by both the owner
and the driver, without more, should not automatically result in summary judgment for the owner"
(Country-Wide Ins. Co. v National R. R. Passenger Corp., 6 NY3d 172, 178 [2006]). The statute
does not assess the owner's own negligence, but rather focuses on whether there was "permission,
express or implied" (see YTL 388 [1 ]).
Here, the issue is whether Mr. Leopold's actions created permission, express or implied,
for MBM Inc.' s employees to drive the car when he handed the keys to Mr. Pires. During her
deposition, Leopold specifically stated " .. .I am not a driver of the vehicle ... My husband is a
driver. I use the car infrequently." (NYSCEF Doc. No. 30 p 11, lines 23-25). Throughout the
deposition, she reiterated her and her husband's relationship to the car, as her husband being the
154152/2021 ADAMSON, GRANTIEAH I vs. LEOPOLD, ROBIN ET AL Page 4 of6
Motion No. 001
4 of 6
[* 4]
[FILED: NEW YORK COUNTY CLERK 01/06/2025 05:07 P~ INDEX NO. 154152/2021
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 01/06/2025
frequent driver, and her husband being the one that drove the car to MBM Inc. on October 14,
2020. When asked if she gave permission to the dealer, she stated "I was not there. My permission
was given to my husband" (id., p 17 lines 10-11 ). It is undisputed that Mr. Leopold had permission
to operate the vehicle. It is also undisputed that Mr. Leopold specifically had permission to operate
the vehicle on the day he brought the vehicle to MBM Inc. to be serviced. There is nothing
indicating that this permission was revoked at any time or that it was limited in nature. While
operating the vehicle with Leopold's consent, Mr. Leopold brought the vehicle to MBM Inc. and
tendered the keys of the car to Mr. Pires, with the intention of having the car serviced. His express
request that MBM Inc. fix the car gave it implied consent to operate the vehicle. There is nothing
indicating Mr. Leopold ever revoked or limited this consent. In his affidavit, Mr. Leopold stated
that he did not give express or implied permission for MBM Inc. to drive the vehicle outside of
the facility (NYSCEF Doc. No. 31 Jr 13), but the statement is unpersuasive, as it was foreseeable
that when he handed over the car for servicing, the employees at MBM Inc. would drive the car.
Further, the statement does not explain how MBM Inc. would have known or should have known
of his alleged withholding of consent to areas beyond the MBM Inc. facility, specifically the public
roadway.
Similarly, in Murdza v Zimmerman (99 NY2d 375 [2003]), the plaintiff was struck by a
vehicle driven by the defendant's boyfriend. The defendant was an employee of the lessee, Brown
and Williamson Tobacco Corp. (B&W), who leased the vehicle from D.L. Peterson Trust (the
Trust) and PHH Fleet America Corp. (PHH). B&W, the Trust, and PHH moved for summary
judgment. Murdza argued that B&W, the Trust and PHH were owners as defined under Vehicle
and Traffic Law. The corporate defendants cross-moved for summary judgment. B & W argued
that restrictions in their employee handbook established that Zimmerman drove the vehicle without
consent, and the other corporate defendants argued that those handbook restrictions also precluded
their liability. The defendants' motion was granted, and the complaint was dismissed as against
them. On appeal, the court stated that VTL establishes a rebuttable presumption that the vehicle
was being operated with the owner's consent. The Murdza court explained that B&W's handbook
explicitly restricted who may or may not operate its vehicle and therefore rebutted the presumption,
154152/2021 ADAMSON, GRANTIEAH I vs. LEOPOLD, ROBIN ET AL Page 5 of6
Motion No. 001
5 of 6
[* 5] r
[FILED: NEW YORK COUNTY CLERK 01/06/2025 05:07 P~ INDEX NO. 154152/2021
NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 01/06/2025
but PHH and Trust did not benefit from the restrictions and did not limit their ownership liability
under VTL 388.
"[T]he proponent of a summary judgment motion must make a prima facia showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Here, Leopold fails to provide substantial evidence to support her position. As stated, Mr.
Leopold's position that there was no implied consent is unpersuasive in light of the foreseeability
that a car being serviced may require a test drive on the public streets. Furthermore, Leopold's
argument that she was a passive owner and MSM Inc. was a bailor does not overcome the
presumption of liability or provide a defense to her liability under VTL 388. Finally, Leopold's
unopposed motion for indemnification is denied; since liability has not yet been determined, the
issues is premature.
Accordingly, it is
ORDERED that the defendant Robin Leopold's motion for summary judgment and
dismissal of plaintiff Grantieah I. Adamson's complaint is denied; and it is further
ORDERED that the defendant Robin Leopold's motion for crossclaims against co-
defendants Kevin Flowers and Mercedes-Benz of Manhattan Inc. for indemnification is denied;
and it is further
ORDERED that within thirty days from the date of this Decision and Order, Plaintiffs shall
serve a copy of this Decision and Order with Notice of Entry upon opposing counsel and upon the
Clerk of this Court and the General Clerk's office.
This constitutes the Decision and Order of this Court.
1/6/2025
DATE
~
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
154152/2021 ADAMSON, GRANTIEAH I vs. LEOPOLD, ROBIN ET AL Page 6 of6
Motion No. 001
[* 6] 6 of 6