| Amex Assur. Co. v Kulka |
| 2009 NY Slip Op 07965 [67 AD3d 614] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Amex Assurance Company, as Subrogee of Craig A. Beresid andAnother, et al., Respondents, et al., Plaintiff, v Devin M. Kulka et al.,Appellants. |
—[*1] BrÉa Yankowitz, P.C., Floral Park, N.Y. (Glenn G. Gunsten and Patrick J. BrÉaof counsel), for appellant Harriet Kulka. Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for appellant NewYork Institute of Technology. Gerard D. De Santis, Carle Place, N.Y. (Marc G. De Santis of counsel), for respondentAmex Assurance Company, as subrogee of Craig A. Beresid and Stacy Beresid. Tinari, O'Connell, Osborn & Kaufman, LLP, Central Islip, N.Y. (Frank A. Tinari ofcounsel), for respondents Craig A. Beresid and Stacy Beresid.
In a consolidated action, inter alia, to recover insurance benefits allegedly paid to theplaintiff Amex Assurance Company's insureds, the defendants Devin M. Kulka and Jack Kulkaappeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County(Pitts, J.), dated August 18, 2008, as denied their motion for summary judgment dismissing thecomplaint insofar as asserted against them, the defendant Harriet Kulka separately appeals, aslimited by her brief, from so much of the same order as denied that branch of her motion whichwas for summary judgment dismissing the complaint insofar as asserted against her, and thedefendant New York Institute of Technology separately appeals, as limited by its brief, from somuch of the same order as denied its motion for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendants Devin M. Kulka and Jack Kulka which was for summaryjudgment dismissing the complaint insofar as asserted against the defendant Jack Kulka andsubstituting therefor a provision granting that branch of the motion; as so modified, the order isaffirmed insofar as appealed from, with one bill of costs to the plaintiffs appearing separatelyand filing separate briefs payable by the defendants Harriet Kulka and New York Institute ofTechnology.[*2]
The defendant New York Institute of Technology(hereinafter NYIT) provided the defendant Harriet Kulka (hereinafter Harriet) with a motorvehicle for her use as an employee. It is undisputed that, on May 29, 2004, Harriet and herhusband, the defendant Jack Kulka (hereinafter Jack), were out of town. It is also undisputedthat, on that date, the infant defendant Devin M. Kulka (hereinafter Devin), Jack's son andHarriet's stepson, was operating this vehicle when he was involved in a collision. The vehicle hewas driving collided with a vehicle owned by the plaintiff Stacy Beresid and operated by theplaintiff Craig A. Beresid (hereinafter together the Beresids), who were insured by the plaintiffAmex Assurance Company (hereinafter Amex). Amex allegedly paid to its insureds damagessustained as a result of this accident.
"Vehicle and Traffic Law § 388 creates a 'strong presumption' (Matter of State Farm Mut. Auto. Ins. Co. vEllington, 27 AD3d 567, 568 [2006]) of permissive use which can only be rebutted withsubstantial evidence sufficient to show that the driver of the vehicle was not operating thevehicle with the owner's express or implied permission" (Talat v Thompson, 47 AD3d 705, 705 [2008]; see Matter of New York Cent. Mut. FireIns. Co. v Dukes, 14 AD3d 704 [2005]). " 'The uncontradicted testimony of a vehicleowner that the vehicle was operated without his or her permission, does not, by itself, overcomethe presumption of permissive use' " (Talat v Thompson, 47 AD3d at 706, quotingMatter of State Farm Mut. Auto. Ins. Co. v Ellington, 27 AD3d at 568; see Matter ofGeneral Acc. Ins. Co. v Bonefont, 277 AD2d 379 [2000]). Additionally, " '[i]f the evidenceproduced to show that no permission has been given has been contradicted or, because ofimprobability, interest of the witnesses or other weakness, may reasonably be disregarded by thejury, its weight lies with the jury' " (Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d172, 177 [2006], quoting St. Andrassy v Mooney, 262 NY 368, 372 [1933]).
Under the circumstances presented here, the defendants failed to sufficiently rebut the strongpresumption pursuant to Vehicle and Traffic Law § 388 that Devin was operating thevehicle with the permission of the owner, NYIT, and its employee, Harriet (see Talat v Thompson, 47 AD3d705 [2008]; Cherry v Tucker, 5AD3d 422 [2004]). Accordingly, the Supreme Court properly determined that NYIT andHarriet failed to establish their prima facie entitlement to judgment as a matter of law.
Jack, however, was neither the owner of the vehicle, nor the owner's employee to whom thevehicle had been entrusted. Accordingly, the presumption of permissive use by Devin pursuantto Vehicle and Traffic Law § 388 had no application as to him. In the absence of any suchpresumption, and in the absence of any evidence that Jack entrusted Devin with the vehicle orgave him permission to operate it, Jack and Devin demonstrated Jack's prima facie entitlement tosummary judgment dismissing the complaint insofar as asserted against him. In opposition,Amex and the Beresids failed to raise a triable issue of fact. Accordingly, the Supreme Courtshould have granted that branch of Jack and Devin's motion which was for summary judgmentdismissing the complaint insofar as asserted against Jack.
Jack and Devin's contention that Amex failed to provide proof of damages is not properlybefore this Court, as that issue was not addressed in the order appealed from (see Popular Fin. Servs., LLC v Williams,50 AD3d 660, 661 [2008]; Morris v Queens-Long Is. Med. Group, P.C., 43 AD3d 394, 395[2007]). We note that this contention was the sole basis on which Devin relied in claimingentitlement to summary judgment dismissing the complaint insofar as asserted against him.
In light of our determination, we need not reach the remaining contentions of Amex. Dillon,J.P., Dickerson, Lott and Austin, JJ., concur.