Clarke v Avis Budget Car Rental, LLC (2026 NY Slip Op 51893(U))

Reported in New York Official Reports at Clarke v Avis Budget Car Rental, LLC (2026 NY Slip Op 51893(U))

Civil Court of the City of New York, Queens County

Decided on October 27, 2026

Index No. CV-722352-25/QU

Peter F. Lane, J.

The following numbered papers were read on this motion by defendant to dismiss plaintiff’s complaint and, in the alternative, for summary judgment (CPLR 3211 [a] [1]; [a] [7]; 3212).

NYSCEF Doc. Nos.

Notice of Motion, Affirmation, Exhibits, Service 5-18

Affidavits in Opposition, Exhibits, Service 19-20

Affirmation in Reply, Exhibits, Service 21

Plaintiff’s action seeks to recover first-party no fault benefits in the amount of $4,043.30 for medical services rendered between April and August 2025 to Odemaris G. (“Assignor”) who was injured in an automobile accident on March 29, 2025. Defendant now moves to dismiss plaintiff’s complaint (CPLR 3211 [a] [1]; [a] [7]) and, in the alternative, for summary judgment on the basis of lack of causation as the assignor’s injuries did not arise from a motor vehicle accident (CPLR 3212).

The Court turns to the first branch of the motion to dismiss pursuant to CPLR 3211 (a) [*2](1).

CPLR 3211 (a) (1) allows a defendant to seek dismissal of a petition based upon the documentary evidence. A motion pursuant to CPLR 3211 (a) (1) must be made by pre-answer motion or raised in the answer, otherwise it is waived (CPLR 3211 [e]). On a motion to dismiss, the pleading is to be afforded a liberal construction and plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference (see Bd. of Managers of 37, 39 Madison St. Condominium v 31 Madison Dev., LLC, 230 AD3d 1214 [2d Dept 2024], citing Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2d Dept 2010]). A motion to dismiss pursuant to CPLR 3211 (a) (1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gillings v New York Post, 166 AD3d 584, 586 [2d Dept 2018], citing Goshen v Mut. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]; see Goshen, 989 NY2d at 326-327; Strong Real Estate, LLC v 55 Town Line, LLC, 192 AD3d 716, 717 [2d Dept 2021]).

In support of the motion, defendant submits, inter alia, an attorney affirmation; a copy of the pleadings; a copy of the NF-2; an uncertified police report; the affidavit of Philip M., Avis PIP/PD Claims Manager who attests as to the standard practice and procedures for the reporting of any rental vehicle involvement in any accident, and the maintenance history; as well as the EUO transcript of the Jeep GCL4 renter, Kendrick G.

“A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law” (see Dimas Tower, Inc. v N. Shore Towers Apartments Inc., 249 AD3d 690, 692 [2d Dept 2026], quoting Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 715 [2d Dept 2022]). “To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” (id., quoting Bath & Twenty, LLC v Fed. Sav. Bank, 198 AD3d 855 [2d Dept 2021]).

Here, the police report is uncertified and not in admissible form (CPLR 4518 [c]). The police officer who created the report did not witness the accident and the statements are not made upon their personal observation (see Huff v Rodriguez, 45 AD3d 1430 [4th Dept 2007]); it is not proven that the person giving information to the police officer was under a business duty to report the facts (see Johnson v Lutz, 253 NY 14 [1930]; People v Dyer, 128 AD2d 719 [2d Dept 1987]); and the report does not recite any statement that would qualify under some hearsay exception, such as an admission (see Memenza v Cole, 131 AD3d 1020, 1022 [2d Dept 2015], quoting Stevens v Kirby, 86 AD2d 391, 395 [4th Dept 1982]). Furthermore, Kendrick G.’s EUO transcript does not qualify as documentary evidence for purposes of a motion to dismiss based on a defense founded upon documentary evidence (see Matter of In re Walker, 117 AD3d 838, 839 [2d Dept 2014]). Therefore, as the Court cannot consider the uncertified police report and the EUO transcript pursuant to CPLR 3211 (a) (1), the Court finds the documentary evidence defendant proffers does not utterly refute plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.

Accordingly, the branch of the motion to dismiss based upon the documentary evidence (CPLR 3211 [a] [1]) is denied.

Turning to the second branch of defendant’s motion to dismiss for failure to state a cause of action, “the pleading is afforded a liberal construction,” the facts alleged in the petition must be accepted as true, and plaintiff is to be entitled to receive the benefit of every favorable inference (Leon v Martinez, 84 NY2d 83, 87 [1994]; see Nassau Operating Co., LLC v DeSimone, 206 AD3d 920, 925 [2d Dept 2022]). A motion to dismiss for failure to state a cause of action must be dismissed if the allegations contained within the “four corners” of the pleading manifest a cause of action cognizable at law (see 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 151-152 [2002]; Khoury v Khoury, 78 AD3d 903, 904 [2d Dept 2010]). In determining such a motion, the court may freely consider additional facts contained in affidavits submitted by the plaintiff to remedy any defects in the pleading (see Twinkle Play Corp. v Alimar Props., Ltd., 186 AD3d 1447, 1448 [2d Dept 2020]).

Whether the plaintiff can ultimately establish its allegations is not part of the calculus in determining the motion to dismiss (see EBC I, Inc. v Goldman Sachs Co., 5 NY3d 11, 19 [2005]; Matter of Scarsdale Comm. for Fair Assessments v Albanese, 202 AD3d 966, 969 [2d Dept 2022]), and it is not the role of the court to determine issues of fact. Where evidentiary material is submitted and considered, and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether plaintiff has stated one, and dismissal should not be granted unless it can be shown that the material fact alleged is not a fact at all, and unless it can be said that no significant dispute exists regarding it (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Twitchell Technical Products, LLC v Mechoshade Systems, LLC, 227 AD3d 45, 51-52 [2d Dept 2024], quoting Bonavita v Government Empls. Ins. Co., 185 AD3d 892, 894 [2d Dept 2020]). Here, the Court finds that the complaint herein sets forth the allegations and information sufficient to recover no-fault benefits for medical services rendered to plaintiff’s assignor (see Keller v Keller, 237 AD3d 1184 [2d Dept 2025]) and defendant fails to establish that plaintiff does not have causes of action based upon the material facts alleged.

Accordingly, the branch of the motion seeking to dismiss the petition for failure to state a cause of action (CPLR 3211 [a] [7]) is denied.

The Court turns to the third branch of defendant’s motion seeking, in the alternative, summary judgment (CPLR 3211 [c]; 3212) on the basis of lack of causation as the assignor’s injuries did not arise from a motor vehicle accident (CPLR 3212).

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Matter of Aaron Manor Rehabilitation & Nursing Ctr., LLC v Zucker, 42 NY3d 46 [2024], citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; see Schmitt v Medford Kidney Ctr., 121 AD3d 1088 [2d Dept 2014]; Zapata v Buitriago, 107 AD3d 977 [2d Dept 2013]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Once the movant has demonstrated, prima facie, a showing of entitlement to judgment, the burden shifts to [*3]the party opposing the motion to establish the existence of material issues of fact which require a trial of the action (see St. Claire v Empire Gen. Contr. & Painting Corp., 33 AD3d 611 [2d Dept 2006], quoting Alvarez v Prospect Park Hosp., supra at 324; Zuckerman v City of New York, supra at 562).

Here, defendant proffers an uncertified police report and argues there is no evidence the assignor was involved in an insurable accident with defendant’s insured vehicle, thus, no causal connection exists between the assignor’s injuries and the treatment plaintiff provided. However, the report’s lack of witnesses or vehicle information, including the absence of a license plate number, despite the officer’s written statement that one was obtained, has no probative value. As the police report is uncertified, its contents constitute inadmissible hearsay and cannot be considered as evidence (see Yassin v Blackman, 188 AD3d 62, 66 [2d Dept 2020]). As to defendant’s attorney attestation the assignor was not involved in an insurable accident with defendant’s insured vehicle, it is well settled that the “bare affirmation of an attorney who demonstrates no personal knowledge of the facts is unavailing and without evidentiary value” (see Winter v Black, 95 AD3d 1208 [2d Dept 2012], quoting Bahlkow v Greenberg, 185 AD 829, 831 [2d Dept 1992]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [2011]). Thus, as defendant’s attorney affirmation demonstrates no personal knowledge of the facts, it is of no probative value or evidentiary significance.

In further support of its motion, defendant submits the EUO transcript of Kendrick G., the renter of the Jeep GCL4 bearing license plate no. LJL5243 (“the Jeep”) allegedly involved in the assignor’s accident. Kendrick G. denied his involvement in an accident on March 29, 2025 with the assignor (tr at 29, lines 8-23). Defendant also proffers the affidavit of Philip M., Avis PIP/PD Claims Manager who attests Kendrick G., an Avis employee on the date of the March 29, 2025 accident, rented multiple vehicles, including the Jeep for his personal use. Philip M. further attests Avis’ rental computerized file does not indicate Kendrick G. reported any involvement in the March 29, 2025 accident, nor is there any record indicating physical damage to the Jeep’s exterior upon its return to Avis. Accordingly, the Court finds the EUO testimony and Philip M.’s affidavit are sufficient to demonstrate, prima facie, that the alleged injury did not arise out of an insured incident (see Kalitenko v Nationwide Mut. Fire Ins. Co., 88 Misc 3d 127(A) [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2026]; see also Francois Parisien v Allstate Ins. Co., 64 Misc 3d 140(A) [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see also Pavlova v Allstate Ins. Co., 60 Misc 3d 135(A) [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; CPLR 3116 [a]). In opposition, plaintiff only submits the affirmation of counsel who does not assert personal knowledge of the facts. Thus, plaintiff failed to raise a triable issue of fact.

Accordingly, defendant’s motion for summary judgment is granted and plaintiff’s complaint is hereby dismissed. Any additional relief requested herein has been otherwise considered and is likewise denied.

This is the Decision and Order of the Court.

Date: October 27, 2026

Jamaica, New York

Hon. Peter F. Lane, JCC