| Talat v Thompson |
| 2008 NY Slip Op 00256 [47 AD3d 705] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Asfia Talat et al., Appellants, v Pam Thompson,Defendant, and Ernest D. Holmes et al., Respondents. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Robin Mary Heaney and Francis J. Scahill ofcounsel), for respondents. Koors and Jednak, Bronx, N.Y. (Sally Ann Zullo of counsel), for defendant PamThompson.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Harkavy, J.), entered December 14, 2006, which, after ahearing on the issue of permissive use of a motor vehicle pursuant to Vehicle and Traffic Law§ 388, granted the motion of the defendants Ernest D. Holmes and Tashana Smith Holmesfor summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law, with costs payable by the respondents, and therespondents' motion for summary judgment dismissing the complaint insofar as asserted againstthem is denied.
The plaintiff Asfia Talat, a pedestrian, allegedly sustained personal injuries on September 1,2004 when she was struck by a vehicle owned by the defendant Tashana Smith Holmes anddriven by the defendant Pamela Thompson at or near the intersection of Empire Boulevard andUtica Avenue in Brooklyn.
Vehicle and Traffic Law § 388 creates a "strong presumption" (Matter of State Farm [*2]Mut. Auto. Ins. Co. v Ellington, 27 AD3d 567, 568[2006]) of permissive use which can only be rebutted with substantial evidence sufficient toshow that the driver of the vehicle was not operating the vehicle with the owner's express orimplied permission (see Matter of NewYork Cent. Mut. Fire Ins. Co. v Dukes, 14 AD3d 704 [2005]). "The uncontradictedtestimony of a vehicle owner that the vehicle was operated without his or her permission, doesnot, by itself, overcome the presumption of permissive use" (Matter of State Farm Mut. Auto. Ins. Co. v Ellington, 27 AD3d567, 568 [2006]; see Matter of General Acc. Ins. Co. v Bonefont, 277 AD2d 379[2000]).
The presumption of permissive use was not sufficiently rebutted at the hearing before theJudicial Hearing Officer, and therefore her finding that no permission, express or implied, wasgiven by the defendant Tashana Smith Holmes to the defendant Pamela Thompson did notestablish the respondents' prima facie entitlement to judgment as a matter of law. Accordingly,the Supreme Court erred in granting their motion for summary judgment dismissing thecomplaint insofar as asserted against them (see Litvak v Fabi, 8 AD3d 631 [2004]).
The appellants' remaining contentions are academic or without merit. Prudenti, P.J., Mastro,Santucci and Lifson, JJ., concur.