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New York’s First Dept. Reminds Defense Bar That Dismissal Under Graves Amendment Requires Affidavit from Person with Personal Knowledge or Proper Business Records Affidavit

New York, N.Y. (March 21, 2023) – In Muslar v. Hall, 2023 NY Slip Op 01063 (1st Dep’t 2023), the Appellate Division, First Department, recently reversed the trial court’s award of summary judgment to a rental company under the Graves Amendment because the affidavits provided were “of no probative value.”

The Graves Amendment (49 U.S.C. 30106) “bars state law vicarious liability actions against owners of motor vehicles when (1) they are engaged in the trade or business of renting or leasing motor vehicles, (2) they leased the vehicle involved in the accident, and (3) the subject accident occurred during the period of the lease or rental.” To obtain summary judgment under the Graves Amendment, the defendant must demonstrate the foregoing, as well as that “(4) there is no triable issue of fact as to the plaintiff’s allegation of negligent maintenance contributing to the accident.”

In Muslar, the defendant-rental company submitted affidavits from its controller and president providing that it was “engaged in the motor vehicle leasing business, … involved in renting the truck involved in the accident …, and that the [] vehicle was being operated … during the period of the lease or rental agreement.” The First Department rejected these affidavits, however, because “Neither [] sufficiently establishe[d] the basis—personal knowledge or from identifiable business records—for the affiants’ knowledge of the contents of the affidavits.”

Though the court acknowledged the defendant could have instead relied upon certified business records, it held that the defendant also failed to do so. The affidavits in question annexed “acknowledgement of lease letters” referring to an “unattached previously executed Equipment Rental Agreement.” These documents were not certified as business records, however, and the affidavits did not “lay a sufficient foundation for the letters’ introduction as business records.” As such, they were inadmissible as devoid of probative value.

The court further emphasized that, without the equipment rental agreement in the record, the defendant “cannot refute plaintiff’s allegation that defendants failed to provide … a properly maintained and operating truck” or address the oft overlooked issue of negligent maintenance.


Muslar reminds those in the transportation industry and their counsel that dismissal under the Graves Amendment is not a mere pro forma request automatically granted. The defendant must submit an affidavit from a person with personal knowledge of the underlying rental agreement and maintenance history. If no such person is available, the defendant’s affidavit must, at minimum, annex certified business records (i.e., records prepared in the ordinary course of business) establishing all prongs of the Graves Amendment. In addition, an affidavit from a rental company’s president may not suffice unless he/she can demonstrate personal knowledge of the underlying rental agreement and maintenance history or his/her affidavit annexes and discusses certified business records evincing the same. 

The Muslar decision can be accessed here.

As always, if you should have any questions regarding the use of the Graves Amendment in New York, please do not hesitate to contact any of the attorneys listed below. With the assistance of our colleagues across the firm’s National Transportation Practice, we can also provide answers to any questions regarding the Graves Amendment in other states.

Visit our Transportation Practice page to learn more about our capabilities in this area. We have also developed detailed summaries of the pertinent transportation statutes in each state, which you can find on our Transportation Claims Cheat Sheets page.


Kevin Zimmerman

Dean Pillarella

Gregory S. Katz

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