| Tsadok v Veneziano |
| 2009 NY Slip Op 06534 [65 AD3d 1130] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Ruth Tsadok et al., Respondents, v Patrick J. Veneziano,Appellant, et al., Defendants. |
—[*1]
In an action to recover damages for personal injuries, etc., the defendant Patrick J.Veneziano appeals from so much of an order of the Supreme Court, Kings County (Partnow, J.),dated June 8, 2008, as denied that branch of the motion of the defendants Patrick J. Venezianoand Eva Veneziano which was for summary judgment dismissing the complaint insofar asasserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Patrick J. Veneziano and Eva Veneziano which was forsummary judgment dismissing the complaint insofar as asserted against the defendant Patrick J.Veneziano is granted.
In 2006, the appellant leased a 2005 Nissan Murano for the exclusive benefit and general useof his daughter, the defendant Eva Veneziano. On May 27, 2006, Eva left the Nissan at hermother's house and went to stay with friends for the weekend. Although there was an extra set ofcar keys in a safe in her mother's house, she left her set of car keys on a table so that her mothercould move the car.
Shortly after Eva left, her sister, Danielle, and Danielle's boyfriend, the defendant JosephReynolds, and at least one other friend, Josh, arrived at the mother's house. Danielle agreed toJosh's request to go out to the car and listen to music on its radio. They took the keys from thetable and went out to the car for that purpose. Danielle and Reynolds sat in the car while Joshremained outside. It is undisputed that neither Danielle nor Reynolds had a driver's license.
While in the car listening to the radio, Reynolds asked if he could drive the car. In spite ofDanielle saying she thought it was not a good idea, Reynolds put the car in reverse and starteddriving. He eventually lost control of it and, inter alia, struck and injured the plaintiff RuthTsadok.
The injured plaintiff and her husband, derivatively, subsequently commenced this actionagainst Reynolds as well as Eva and the appellant. It is undisputed that a default judgment hasbeen entered against Reynolds. After depositions were conducted, Eva and the appellant movedfor summary judgment dismissing the complaint insofar as asserted against them on the groundsthat they [*2]never gave Reynolds or Danielle permission to usethe car and that Reynolds had stolen the car. In the order appealed from, the Supreme Courtgranted that branch of the motion which was for summary judgment dismissing the complaintinsofar as asserted against Eva and denied that branch of the motion which was for summaryjudgment insofar as asserted against the appellant. We reverse the order insofar as appealedfrom.
Vehicle and Traffic Law § 388 (1) imputes to the owner of a car the negligence of anyperson who uses or operates it with the owner's permission. This section gives rise to apresumption that the vehicle is being operated with the owner's consent. However, thispresumption may be rebutted by substantial evidence to the contrary (see generally Murdza vZimmerman, 99 NY2d 375, 380 [2003]; Leotta v Plessinger, 8 NY2d 449, 461[1960]; Headley v Tessler, 267 AD2d 428 [1999]).
In support of their motion for summary judgment, the appellant submitted depositiontestimony showing that, other than himself, Eva was the only one entitled to the unrestricted useof the car, that the mother was entitled to limited use of it with Eva's permission, and that no oneelse had or was to be given permission to use it. In addition, his deposition testimony establishedthat shortly after the accident, the appellant made a complaint to the police, and Reynolds wascriminally prosecuted in connection with his driving the car. This constituted substantialevidence sufficient to rebut the presumption of permissive use (see Country-Wide Ins. Co. v National R.R.Passenger Corp., 6 NY3d 172, 174-180 [2006]; Murdza v Zimmerman, 99NY2d 375, 380 [2003]; Leotta v Plessinger, 8 NY2d 449, 461 [1960]; Lancer Ins.Co. v Republic Franklin Ins. Co., 304 AD2d 794, 797 [2003]; Matter of Allstate Indem.Co. v Nelson, 285 AD2d 545 [2001]), and established prima facie the appellant's entitlementto judgment as a matter of law. This shifted the burden to the plaintiffs to show the existence of atriable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).They failed to do so.
The proof submitted by the plaintiffs, including the documents obtained pursuant to theFreedom of Information Law (Public Officers Law art 6), did not raise a triable issue of fact as topermissive use. In addition, the fact that Danielle only submitted an affidavit, but did not submitto a deposition, did not raise a triable issue of fact as to implausibility or collusion (seegenerally Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d at 178; cf. Murphy v Carnesi, 30 AD3d570 [2006]). Rivera, J.P., Florio, Dickerson and Austin, JJ., concur.