MEMORANDUM & ORDER

MAUSKOPF, District Judge.

Plaintiff, Mark Noveck, brings this diversity action against PV Holdings Corporation, Aesop Leasing L.P, Cendant Car Rental Group, and Avis Rent-A-Car System, LLC (collectively, "Avis"), following a catastrophic automobile accident which left him paralyzed from the neck down. The gravamen of Plaintiff's complaint is that the vehicle which Avis leased him was defectively designed because it was not equipped with a side curtain airbag. Plaintiff alleges strict liability in tort, negligence, and breach of express and implied warranties. Avis moves for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.1 For the reasons that follow, Avis' motion is GRANTED.

FACTUAL BACKGROUND

The Accident

On May 21, 2005, Plaintiff, Mark Noveck, rented a 2005 Chevrolet Trailblazer ("Trailblazer") from the Avis Rent-A-Car facility at La Guardia Airport. This vehicle was not equipped with an optional side curtain airbag. Plaintiff claims that the Avis employee behind the counter informed him that the Trailblazer was safe, and that a second Avis employee showed him how to use the vehicle and went over its safety features, including the seatbelt, airbag, and brakes. Pl. Dep. at 101. Plaintiff testified that "[i]f the person told me it was not a safe car to drive, I would have gotten a sedan." Pl. Dep. at 59.

Upon completing the rental transaction, Plaintiff, along with his sister-in-law, Luiza Ustayeva, and her husband, Vladimir Sachakov, embarked on a road trip to Texas. Plaintiff drove, Sachakov sat in the front passenger seat, and Ustayeva sat in the back. At approximately 3:30 p.m. while traveling along Interstate 81 in West Virginia, the Trailblazer went off the road and crashed.

The circumstances surrounding the accident are unclear.2 Plaintiff has no recollection of the accident, and Ustayeva only recalls moving from one lane into another and a sharp U-turn. Sachakov provides a more detailed account of the accident. He testified that immediately prior to the accident, Plaintiff tried to call his wife on his cell phone and that when he could not get through, he asked Sachakov to dial the number for him. Sachakov stated that he turned around to ask Ustayeva for the number but that Ustayeva had already begun dialing the number from her phone. Sachakov testified that while Ustayeva was dialing the number, she saw in the mirror that Plaintiff had fallen asleep and called his name. Sachakov further testified that when Plaintiff opened his eyes, the car was already careening off the road. Plaintiff tried to correct the vehicle but it slid onto the shoulder and rolled over, ejecting Plaintiff from the driver's side window. Sometime during the rollover, Plaintiff injured his spinal cord, leaving him paralyzed from the neck down.

Acquisition of 2005 Trailblazer

The Trailblazer that Mark Noveck had been driving was previously acquired by Avis from General Motors Corporation ("GM") through a Repurchase Agreement in 2004. Pursuant to the Repurchase Agreement, Avis acquired a total of 234,700 vehicles, including 20,300 Trailblazers, for the 2005 model year. The Repurchase Agreement provided that Avis would possess these vehicles for a specified period and then return the vehicles to GM, which would bear the "residual risk" of the vehicle, meaning the value of the vehicle when sold or disposed. According to Avis, its custom and practice was "to rely upon GM to determine what optional safety equipment, if any, should be included with the vehicle." Def. Ex. M. It states that its considerations were "minimal and almost nonexistent beyond GM's requirements." Def. Ex. L at 65. Plaintiff contends generally, and Avis does not dispute, that Avis had available GM's Order Guide to determine the available options on the various GM models under consideration for purchase and could select additional options, but cites to no evidence regarding the options it specifically considered with respect to its purchase of the 2005 Trailblazer. PI. Ex. J at pp. 10-12, 17-18. As discussed more fully below, in support of his claim that Avis knew or should of have known that the 2005 Trailblazer had a high incidence of rollovers and thus should have been equipped with optional side airbag curtains, Plaintiff proffers the affidavits of two expert witnesses, a 2001 Daily News article and a 2001 government report regarding earlier models of the Trailblazer. See, infra at p. 300.

PROCEDURAL BACKGROUND

On May 17, 2007, Mark and Irina Noveck, his wife at the time, initiated this action in the Supreme Court of New York, Queens County against GM and Avis. The action was timely removed to this Court on July 20, 2007. On September 10, 2007, Plaintiffs filed an Amended Complaint alleging negligence in the design, manufacture, ownership and/or maintenance of the vehicle; breach of express and implied warranties; strictly liability in tort for the manufacture, sale, inspection, rental and/or distribution of a defective product; and loss of consortium.3 Both GM and Avis answered the Amended Complaint. Avis' answer asserted cross-claims against GM for indemnification should it be found liable.

On April 24, 2009, Plaintiff and GM entered into a Settlement Agreement, and thereafter, on May 8, 2009, Plaintiff filed a stipulation discontinuing all claims against GM. Consequently, on June 5, 2009, Avis amended its Answer to assert an affirmative defense pursuant to the New York General Obligations Law pertaining to settling defendants.4 Avis now moves for partial summary judgment. Plaintiff has opposed the motion.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In determining whether a genuine issue of material fact exists, the evidence of the nonmovant "is to be believed" and the court must draw all "justifiable" or "reasonable" inferences in favor of the non-moving party. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); Brosseau v. Haugen, 543 U.S. 194, 195 n. 1, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial,'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original) (quoting Fed.R.Civ.P. 56(e)), and "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (citing cases). In other words, the nonmovant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to [its] case." Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548) (internal quotation marks omitted) (alteration in original). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir.1996) (citing Anderson, All U.S. at 247-48, 106 S.Ct. 2505).

DISCUSSION

I. Federal Preemption

Avis argues that Plaintiff's strict liability and negligence claims must be dismissed because they are preempted by federal law. The doctrine of federal preemption is rooted in the Supremacy Clause of the United States Constitution, which provides that "the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. "Federal preemption of a state statute can be express or implied, and generally occurs: [1] where Congress has expressly preempted state law, [2] where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law, or [3] where federal law conflicts with state law." Pacific Capital Bank, N.A. v. Connecticut, 542 F.3d 341, 351 (2d Cir.2008) (citing SPGGC, LLC v. Blumenthal, 505 F.3d 183, 188 (2d Cir. 2007)).

In this case, the Court must determine whether a state law finding in Plaintiff's favor would conflict with federal law. "Conflict preemption can arise in one of two ways, either `when compliance with both federal and state regulations is a physical impossibility' or `when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" O'Hara v. General Motors Corp., 508 F.3d 753, 759 (5th Cir.2007) (quoting Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982)).

Pursuant to the National Traffic and Motor Vehicle Safety Act of 1966 (the "Safety Act"), 49 U.S.C. § 30101, et seq., the Department of Transportation ("DOT") promulgated Federal Motor Vehicle Safety Standard ("FMVSS") 208, which specifies performance requirements for the protection of vehicle occupants in crashes in order to reduce the number of deaths of vehicle occupants and the severity of injuries by specifying vehicle crashworthiness requirements. 49 C.F.R. § 571.208. FMVSS 208 applies to passenger cars, multipurpose passenger vehicles, trucks and buses, and its provisions vary based on the type of vehicle and year of manufacture.

The Safety Act contains both a preemption provision and a savings clause preserving common law liability. Its preemption clause provides:

49 U.S.C. § 30103(b)(1). The savings clause, which preserves those actions that seek to establish a greater safety than the minimum safety set forth by federal regulations, states: "[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law." 49 U.S.C. § 30103(e).

The Supreme Court examined the preemptive effect of the Safety Act in Geier v. Am. Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). In that case, petitioner, who was seriously injured when her 1987 Honda Accord collided with a tree, and her parents, sued the manufacturer of the vehicle claiming that the car had been defectively and negligently designed in that it was not equipped with a driver's side airbag. The Supreme Court concluded that (1) the Safety Act did not expressly preempt petitioners' action; (2) the savings clause did not bar ordinary preemption principles; and (3) petitioners' action actually conflicted with FMVSS 208 and was therefore preempted.

The Supreme Court's holding in Geier turned on FMVSS 208's specific performance requirements for passive restraint devices, which allowed "manufacturers to choose among different passive restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies to satisfy that requirement." Geier, 529 U.S. at 878, 120 S.Ct. 1913. The Supreme Court reasoned

Geier, 529 U.S. at 881, 120 S.Ct. 1913 (internal quotations omitted).

Numerous federal and state courts have followed the reasoning in Geier. See, e.g., Ellison v. Ford Motor Co., 650 F.Supp.2d 1298 (N.D.Ga.2009) (plaintiff's design defect claim seeking side impact airbags would "foreclose the option specifically allowed by FMVSS 208"); Chase v. Ford Motor Co., No. 1168886 (Cal.Super. May 2, 2008); Garden v. General Motors Corp., 509 F.3d 227 (5th Cir.2007) (plaintiffs' claim would "foreclose a deliberate option left to manufacturers under Standard 208"); Osman v. Ford Motor Co., 359 111. App.3d 367, 295 Ill.Dec. 805, 833 N.E.2d 1011 (Ill.App. 4 Dist.2005) (same); Heinricher v. Volvo Car Corp., 61 Mass.App.Ct. 313, 809 N.E.2d 1094 (Mass.App.Ct.2004); Anthony v. Abbott, 289 F.Supp.2d 667 (D.Vi.2003); Griffith v. General Motors Corp., 303 F.3d 1276 (11th Cir.2002). Plaintiff asks this Court to follow this line of cases; however, a close review of these cases reveals several distinguishing features which undermine a finding of preemption.

In reaching this conclusion, the Court is persuaded by the reasoning set forth in Durham v. County of Maui, 696 F.Supp.2d 1150 (D. Hawai'i 2010). In that case, plaintiffs brought suit against Ford Motor Company following a fatal car accident alleging that the subject vehicle was defective in that it lacked side airbags. The court, in holding that plaintiffs' state law claims were not preempted, stated that "FMVSS 208 does not conflict with Plaintiffs' side-impact airbag claims because FMVSS 208 contains no side-impact airbag requirements, much less conflicting ones." Durham, 696 F.Supp.2d at 1159. The court also noted that unlike the vehicle in Geier and other cases in which the court found preemption, see, e.g., Ellison, Anthony, and Chase, the subject vehicle fell under a subsection of FMVSS 208 which did not provide the manufacturer with options to comply with FMVSS 208's regulatory scheme. Durham, 696 F.Supp.2d at 1162 (stating "[u]nlike the provision of FMVSS 208 applicable to the subject vehicle—i.e., subsection S4.1, which provides no options—subsection S4.2 includes a list of explicit options that allow manufacturers to select how they will satisfy the regulatory requirements.").

Likewise, in this action, the subject vehicle, a 2005 Chevrolet Trailblazer, is governed by a subsection of FMVSS 208 which does not provide for optional passive restraint devices.5 In fact, the "phase-in" period for optional restraints under FMVSS 208, specifically for frontal airbags, which was central to the Supreme Court's decision in Geier, was phased out in the 1990s, well before the 2005 Trailblazer was manufactured. See 49 U.S.C. § 30127(b). As the Durham court noted, FMVSS does not include a side curtain airbag requirement or option; consequently, FMVSS 208's regulatory scheme originally aimed at achieving a "variety and mix" of passive restraint devices would not be undermined if a state law side curtain airbag requirement was imposed. See Soto v. Nguyen, 634 F.Supp.2d 1096 (E.D.Cal.2009) (no preemption where FMVSS 208 did not address need for bus passenger seat belts). To the contrary, allowing Plaintiff's claims to proceed would likely "advance—not thwart" the statutory and regulatory purpose of the Safety Act and FMVSS 208. See Durham, 696 F.Supp.2d at 1158.

Avis also argues that Plaintiff's tort claims are preempted because they conflict with the Safety Act's regulatory framework and Congress' directive that the Secretary of the DOT promulgate national performance standards aimed at preventing ejections in rollover crashes. In support, Avis references 49 U.S.C. § 30128, which provides that "[t]he Secretary shall... initiate a rulemaking proceeding to establish performance standards to reduce complete and partial ejections of vehicle occupants from outboard seating positions." 49 U.S.C. § 30128(c). Avis also cites a notice issued by the National Highway Traffic Safety Administration ("NHTSA") in connection with amending window glazing performance requirements under FMVSS 205 which states, in part,

67 Fed. Reg. 41365 (2002). However, this agency statement of policy, which does not expressly dictate performance standards, is insufficient on its face to demonstrate conflict preemption. See O'Hara v. General Motors Corp., 508 F.3d 753, 761 ("agency statements of policy which do not interpret regulations have only persuasive authority") (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). Moreover, even assuming that the DOT will establish national performance standards in the future, the statutory and regulatory framework that existed in 2005 neither mandated side curtain airbags nor provided an option to forego the use of a side curtain airbag. See Carden, 509 F.3d at 232 n. 1 (5th Cir.2007) (examining the version of FMVSS 208 existing at the time the subject vehicle was manufactured).

Finally, Avis argues that a finding in Plaintiff's favor would conflict with NHTSA's recent amendment to FMVSS 214, which provides:

72 Fed. Reg. 51908 (2007). However, FMVSS 214 governs performance requirements for occupants in side impacts by specifying "strength requirements for side doors, limiting the forces, deflections and accelerations measured on anthropomorphic dummies in test crashes, and by other means." 49 C.F.R. § 571.214; see also 72 Fed. Reg. 51908 (addressing side impact protection for sideways crashes into "narrow fixed objects like utility poles and trees."). Here, Plaintiff's claim is that the design of the vehicle was unreasonably dangerous, not that the vehicle failed to meet side impact crashworthy tests. Thus, FMVSS 208, not FMVSS 214, applies to the instant action. See Ellison, 650 F.Supp.2d at 1303 (finding that FMVSS 208, not 214, applies to plaintiff's action alleged defective design for failure to equip vehicle with side airbag).

In sum, this Court concludes that Plaintiff's claims are not preempted by federal law. Accordingly, that portion of Avis' motion seeking summary judgment on preemption grounds is denied.

II. Strict Liability

Avis argues that Plaintiff is barred from pursuing his strict liability claims based on the terms of the April 24, 2009 Settlement Agreement. The Settlement Agreement entered into by Plaintiff and GM, provides, in part,

Avis argues that it is has enforceable rights under this agreement as an intended third-party beneficiary.

To succeed on a third-party beneficiary theory under New York law, a non-party must be the intended beneficiary of the contract, not an incidental beneficiary to whom no duty is owed. Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219, 252 (2d Cir.2006). "A party asserting rights as a third-party beneficiary must establish `(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost.'" State of California Public Employees' Retirement System v. Shearman & Sterling, 95 N.Y.2d 427, 435, 718 N.Y.S.2d 256, 741 N.E.2d 101 (2000) (quoting Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 336, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983)); see also Strauss v. Belle Realty Co., 98 A.D.2d 424, 469 N.Y.S.2d 948 (2d Dep't 1983) ("A party, claiming to be a third-party beneficiary, has the burden of demonstrating that he has an enforceable right.").

New York follows the Restatement (Second) of Contracts § 302 in allowing a third party to enforce a contract if that third party is an intended beneficiary of the contract. Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 600 (2d Cir. 1991). Section 302(1) provides:

In determining whether a third-party beneficiary exists, courts look at the surrounding circumstances as well as the agreement. Septembertide Publishing, B.V. v. Stein & Day, Inc., 884 F.2d 675, 679 (2d Cir.1989). "The best evidence, however, of whether the contracting parties intended a benefit to accrue to a third party can be ascertained from the words of the contract itself." Alicea v. City of New York, 145 A.D.2d 315, 318, 534 N.Y.S.2d 983 (1st Dep't 1988). Nonetheless, "it is well-settled that the obligation to perform to the third party beneficiary need not be expressly stated in the contract." Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 573 (2d Cir. 1991). "An intent to benefit a third party can ... be found when no one other than the third party can recover if the promisor breaches the contract ... or ... the language of the contract otherwise clearly evidences an intent to permit enforcement by the third party." Alicia, 145 A.D.2d at 318, 534 N.Y.S.2d 983.

In this case, neither party disputes the existence of a valid contract, i.e., the Settlement Agreement. See Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir.1999) ("Settlement agreements are contracts and must therefore be construed according to general principles of contract law."). In sum and substance, the Settlement Agreement releases GM from all liability arising out of the May 21, 2005 accident in exchange for monetary consideration.

Avis argues that pursuant to the plain language of the Settlement Agreement, Plaintiff may "proceed against Avis only on those claims for which Avis is `independently negligent'—that is, his negligence claim, not a strict liability claim." Def. Memo at 5. Avis further argues that GM plainly intended that Plaintiff be barred from proceeding in strict liability because otherwise, its settlement with Plaintiff would not fully release GM from liability, since Avis could seek indemnification from GM.

To understand Defendants' argument, a brief discussion of the theories underlying strict liability and negligence is necessary. In a strict products liability action, "a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product `regardless of privity, foreseeability or the exercise of due care.'" Godoy v. Abamaster of Miami, Inc., 302 A.D.2d 57, 754 N.Y.S.2d 301 (2d Dep't 2003). The imposition of strict liability on certain sellers, such as retailers and distributors of allegedly defective products is based on the policy that "[w]here products are sold in the normal course of business, sellers, by reason of their continuing relationships with manufacturers, are most often in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation." Sukljian v. Charles Ross & Son Co., Inc., 69 N.Y.2d 89, 97, 511 N.Y.S.2d 821, 503 N.E.2d 1358 (1986). Thus, in a strict liability action, "a seller or distributor of a defective product has an implied right of indemnification as against the manufacturer of the product." Godoy, 302 A.D.2d at 62, 754 N.Y.S.2d 301.

On the other hand, in a negligence action, plaintiff must additionally prove that the defendant could have foreseen the injury and, therefore, acted unreasonably in designing the product. Mustafa v. Halkin Tool, Ltd., 00-CV-4851, 2007 WL 959704, at * 10 (E.D.N.Y. Mar. 29, 2007) (citations omitted). In the negligence context, the focus therefore shifts from the characteristics of the product itself to the conduct of the defendant. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 463 N.Y.S.2d 398, 450 N.E.2d 204 (1983).

Based on these theories, as well as the express language of the Settlement Agreement, the Court finds that GM necessarily intended that Plaintiff be barred from proceeding against Avis on a theory of strict liability because otherwise, Avis could ultimately seek indemnification from GM.8 See Barnum v. Millbrook Care Limited Partnership, 850 F.Supp. 1227, 1234 (S.D.N.Y. 1994) (the intent of the promisee governs whether the third-party beneficiary is entitled to the benefits of the agreement). In reaching this conclusion, the Court is persuaded by the reasoning in Spanierman Gallery v. Merritt, 00 Civ. 5712, 2004 WL 1781006 (S.D.N.Y. Aug. 10, 2004).

In that case, Spanierman Gallery ("Spanierman") brought a declaratory judgment action against Mary Merritt claiming to be the rightful titleholder of a valuable painting. Merritt, the original owner of the painting, had given the painting to Timothy Fagan, a local arts and antiques dealer, who later resold it to Spanierman. Merritt claimed that she had given the painting to Fagan for the limited purpose of having it appraised while Spanierman argued that Merritt sold the painting to Fagan.

In an attempt to resolve this dispute, Merritt and Fagan entered into a settlement agreement, whereby Merritt would release Fagan from all claims and would not pursue claims against any third-party in consideration of $40,000. After analyzing the language of the settlement agreement, as well as the surrounding circumstances, the court concluded that

Spanierman Gallery, 2004 WL 1781006, at *12.

Similarly, the Settlement Agreement in this action expressly provides that Plaintiff can only proceed "on the claim that AVIS was independently negligent." This provision was plainly intended to eliminate GM's potential liability to Avis by preventing Plaintiff, in consideration of a large sum of money, from pursuing claims in strict liability against Avis. Thus, it is clear from the terms of the Settlement Agreement and the surrounding circumstances that Avis is an intended third-party beneficiary, and, as such, it is entitled to enforce its terms.9 Accordingly, Plaintiff's claims sounding in strict liability are dismissed.

III. Negligence

To establish a claim for negligence under New York law, Plaintiff must demonstrate that (1) Avis owed him a duty; (2) Avis breached that duty; and (3) Avis' breach was the proximate cause of his injury.10 See Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531 (1981). Here, Plaintiff argues that Avis was negligent by failing to order the Trailblazer with a side curtain airbag and subsequently renting this defectively designed vehicle. PL Third Supp. Resp. to Avis' First Set of Interrogs. ("PL Interrog. Resp.") ¶ 10. Avis responds that it had no duty to equip the Trailblazer with optional safety equipment, and that its failure to do so cannot give rise to a cause of action sounding in negligence. See Def. Reply at 12 (stating, "[t]he issue is not whether Avis breached a duty of care, and Avis does not seek to be "excused" from its duty; rather ... Avis did not have the duty claimed by Plaintiff.").

Upon review of the parties' submissions and the relevant case law, this Court concludes that in some circumstances, a car rental agency has a duty to equip and lease its vehicles with optional safety equipment. However, this case is not one of them.

"[A] determination of negligence—i.e., breach of duty—must begin with consideration of the duty owed, which is a matter of policy, rather than with the issue of foreseeability." Sukljian v. Charles Ross & Son Co., Inc., 69 N.Y.2d 89, 97, 511 N.Y.S.2d 821, 503 N.E.2d 1358 (1986). In general, "[manufacturers and sellers in the normal course of business are liable for injuries caused by ordinary negligence, and are therefore under a duty to exercise reasonable care so as to avoid the occurrence of injuries by any product which can reasonably be expected to be dangerous if negligently manufactured or sold." Gebo v. Black Clawson Co., 92 N.Y.2d 387, 394, 681 N.Y.S.2d 221, 703 N.E.2d 1234 (1998). "It is a duty to use the care, skill, and diligence in and about the process of manufacturing and preparing for market that a reasonable, skillful, and diligent person, or a reasonably prudent person would use under the same or parallel circumstances." 86 N.Y. Jur.2d, Products Liability § 39. "Proof of a generally accepted practice, custom or usage within a particular trade or industry is admissible as tending to establish a standard of care, and proof of a departure from that general custom or usage may constitute evidence of negligence." Cruz v. New York City Transit Auth., 136 A.D.2d 196, 199, 526 N.Y.S.2d 827 (2d Dep't.1988).

Under New York law, "[a] retailer is not generally liable in negligence for the sale of a defective product." Gonzalez v. Rutherford Corp., 881 F.Supp. 829, 844 (E.D.N.Y.1995). However, "it is under a duty to inspect for and discover such defects `as a reasonable physical inspection would disclose.'" Gonzalez, 881 F.Supp. at 844 (E.D.N.Y.1995) (quoting Naples v. City of New York, 34 A.D.2d 577, 578, 309 N.Y.S.2d 663 (2d Dep't 1970)). Thus, "[a] retailer need not ordinarily inspect merchandise for latent defects... [and] when a defect is discoverable only by special tests or by an expert's examination, a retailer will generally not be liable for failure to discover." Topliff v. Wal-Mart Stores East LP, No. 6:04-CV-0297, 2007 WL 911891, at *44 (N.D.N.Y. Mar. 22, 2007) (quoting 6-232 Warren's Negligence in the New York Courts § 232.02[2][e] (Matthew Bender 2005)); see also Travelers Indem. Co. of Illinois v. Hunter Fan Co., Inc., No. 99 CIV 4863, 2002 WL 109567, at *7 (S.D.N.Y. Jan. 28, 2002) ("retailer cannot be held liable for injuries sustained from the contents of a sealed product even though a testimony have uncovered a potential danger; no such obligation is imposed on a retailer."). This duty is heightened for dealers in used products, Gonzalez v. Rutherford Corp., 881 F.Supp. at 844 (question of fact exists as to whether used product dealer conducted a reasonable physical inspection and whether it acted reasonably in failing to install safety devices), and for vendors who buy "goods from an unknown manufacturer or one of dubious reputation," Krumpek v. Millfeld Trading Co., 272 A.D.2d 879, 880, 709 N.Y.S.2d 265 (4th Dep't 2000), because they have no reasonable grounds for believing that the product they acquire and offer for resale is free from dangerous defects. Id.

In contrast, "[a] vendor who purchases products from a reputable source of supply has reasonable grounds for believing the products to be free from defects." Krumpek, 272 A.D.2d at 880, 709 N.Y.S.2d 265. In the motor vehicle industry specifically, "[a] dealer in new motor vehicles manufactured by a manufacturer of national reputation is not under a duty: to inspect such a vehicle to discover latent defects, nor is the dealer liable for an injury resulting from such a defect which was unknown to the dealer." 86 N.Y. Jur.2d, Products Liability § 128; see also Morrissey v. Mazzio, 249 A.D. 788, 292 N.Y.S. 455 (2d Dep't 1936).

Applying the above principles to the instant case, Avis, which purchased the Trailblazer from GM, a reputable manufacturer, had reasonable grounds to believe the Trailblazer to be free from defects. No reasonable inspection by Avis would have or could have discovered the Trailblazer's potentially defective design, i.e., the absence of a side curtain airbag. Therefore, Avis cannot be held liable in negligence for failing to discover this alleged design defect and subsequently renting the Trailblazer in this condition.

Plaintiff argues that Avis knew or should have known that the Trailblazer was defectively designed. Specifically, Plaintiff states that:

Pl. Interrog. Resp. ¶ 10. As evidence, Plaintiff submits a January 9, 2001 NHTSA report awarding the 4x2 Chevrolet Blazer with a one-star rollover resistance rating, and the 4x4 Chevrolet Blazer with a two-star rollover resistance rating, out of a possible five-stars. PI. Ex. E. Plaintiff also proffers a January 10, 2001 Daily News article reflecting these poor rollover resistance ratings. PI. Ex. F.

However, Plaintiff's citations to a report for "Model Year 2001 Rollover Resistance Ratings" and a single news article from 2001 are insufficient to establish that the 2005 Trailblazer also had a low rollover resistance rating. Moreover, nothing in the record suggests that Avis knew about these ratings, and according to Avis, it does not generate, maintain, or receive documents with respect to rollovers involving its SUVs. Entenberg Aff. ¶¶ 2, 3. Additionally, there no evidence in the record that Avis had any information from which it could analyze the safety value of side curtain airbags,11 and any knowledge that it did have regarding the availability of side curtain airbags, by itself, is insufficient to establish an inference that the Trailblazer was defective. See, e.g., Marchant v. Mitchell Dist. Co., 270 S.C. 29, 35-36, 240 S.E.2d 511 (1977) ("[w]e think however, that the fact the crane was without the optional safety device, does not tend to prove that it was defective.").

Plaintiff relies substantially on several expert affidavits stating that Avis had a duty to research and understand the safety risks of its vehicles, and therefore Avis' failure to equip the Trailblazer with a side curtain airbag, which rendered it defective, constitutes negligence. The following selected excerpts are taken from the affidavit of David A. Stivers, a consulting expert in motor vehicle industry standards and practices:

Stivers Aff. ¶¶ 8-11, 13. Similarly, Alan Cantor, a former researcher in vehicle testing and development, attests:

Cantor Aff. ¶ 7.

Pursuant to Fed.R.Civ.P. 56(e), "[a] supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e). "An affidavit stating the facts upon which the expert's opinion is based satisfies rule 56(e) even if the data supporting the facts is not attached." Iacobelli Construction, Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir.1994); see also Mid-State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333 (7th Cir.1989) (rejecting an economist's affidavit as conclusory because it provided no background information or an underlying factual basis). However, "[w]here an expert's affidavit is vague, conclusory and factually unsupported, it fails to raise an issue of fact." Skidd v. JW Marriot Hotels & Resorts, No. 06 Civ. 1554, 2010 WL 2834890, at *5 (S.D.N.Y. July 8, 2010) (internal quotations omitted). Additionally, under Fed.R.Evid. 702, the Court must also determine whether the proposed witness is qualified to testify as an expert, and if qualified, whether scientific, technical, or other specialized testimony provided by that expert is both relevant and reliable.12 Delehanty v. KLI, Inc., 663 F.Supp.2d 127, 131 (E.D.N.Y.2009).

Here, nothing in Plaintiff's submissions establishes Stivers' and Cantor's expertise in the car rental industry. See Nisanov v. Black & Decker (U.S.) Inc., No. 05 Civ. 5911, 2008 WL 906708, at *3 (E.D.N.Y. Apr. 3, 2008) (the expert must have relevant experience and qualifications such that whatever opinion he or she will ultimately express would not necessarily be speculative). Stivers' experience arises from work in car dealership and multi-dealership management industries. Pl. Ex. I. On his resume, the automobile industry schools and seminars he attended include manufacturing companies such as General Motors Corporation, Ford Motor Company, Chrysler Corporation, and Toyota Motor Sales. However, there is no indication that Stivers possesses experience or expertise, or was trained, in the car rental agency industry for companies such as Avis.13 Likewise, Cantor, who has worked in vehicle research and safety development, has no experience in the car rental agency industry. Accordingly, neither of these purported experts is qualified to testify about the customs and standards in the car rental agency. See Zaremba v. General Motors Corp., 360 F.3d 355 (2d Cir.2004) (finding proposed expert's qualifications "meager.").

Most important, Stivers offers no facts or evidence to support his statement regarding customs and practices in the car rental agency market, and neither expert provides any foundation for their opinion that Avis had a duty to research and determine the safety features of the 2005 Trailblazer and to equip it with a side curtain airbag. See Mid-State Fertilizer Co., 877 F.2d at 1339 ("an expert's declaration, full of assertion but empty of facts and reasons, won't get a case past a motion for summary judgment, for a judge must look behind [the expert's] ultimate conclusion . . . and analyze the adequacy of its foundation.") (citing Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 829-32 (D.C.Cir.1988)) (internal quotations omitted). In sum, the conclusory statements proffered by Plaintiff's experts are insufficient to withstand Avis' summary judgment motion. See In re Agent Orange Prod. Liab. Litig., 818 F.2d 187, 193 (2d Cir.1987) (issues of fact at the summary judgment stage "cannot be established by mere speculation or idiosyncratic opinion, even if that opinion is held by one who qualifies as an expert").

Here, it is beyond dispute that Avis has no involvement with the design, assembly or testing of the vehicles it purchases from GM, including the 2005 Trailblazer. Nothing in the record suggests that Avis knew or should have known that the 2005 Trailblazer was unreasonably dangerous, and Plaintiff has failed to present sufficient evidence that the alleged defect was discoverable through reasonable physical inspection.14 See Topliff, 2007 WL 911891, at *44 ("it is Plaintiff's duty, as a threshold matter, to adduce some evidence that the alleged defect was patent or discoverable through reasonable physical inspection."). Accordingly, no reasonable factfinder could conclude that Avis, which purchased vehicles from GM, a reputable manufacturer, was negligent in failing to equip the Trailblazer with an optional side curtain airbag. Accordingly, Plaintiff's negligence claim against Avis must be dismissed.

IV. Negligent Misrepresentation

Avis moves for summary judgment on Plaintiff's claim that it negligently misrepresented that the Trailblazer was safe. Pl. Dep. at 59. To recover on a theory of negligent misrepresentation, Plaintiff must establish that "(1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment." Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000). Generally, "liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified." Kimmell v. Schaefer, 89 N.Y.2d 257, 264, 652 N.Y.S.2d 715, 675 N.E.2d 450 (1996). Additionally, otherwise casual statements, even if made in a commercial setting, are not actionable. Id. at 263, 652 N.Y.S.2d 715, 675 N.E.2d 450.

As previously stated, Avis had no reason to know that the Trailblazer was potentially defective and, therefore, unsafe. Likewise, there is no evidence that the Avis rental agent at La Guardia Airport, who Plaintiff has not identified, knew or should have known that the Trailblazer was unsafe. Moreover, any alleged statement made by the rental agent that the Trailblazer was "safe" amounts to no more than a casual response, and any reliance upon this statement by Plaintiff was not reasonable. Accordingly, Plaintiff's claim that Avis negligently misrepresentation claim is dismissed.

CONCLUSION

For the abovementioned reasons, Avis' motion for partial summary judgment is GRANTED as to Plaintiff's strict liability and negligence claims. The Court notes, however, that Avis did not move for summary judgment with respect to Plaintiff's breach of express and implied warranty claims. Therefore, by October 1, 2010, Avis is directed to serve and file a letter providing the Court with a status report on the case as a whole, and specifically addressing the status of these outstanding claims. Plaintiff's response shall be served and filed by October 10, 2010.

SO ORDERED.