| Zegarowicz v Ripatti |
| 2009 NY Slip Op 08004 [67 AD3d 672] |
| November 4, 2009 |
| Appellate Division, Second Department |
| Paul Zegarowicz, Appellant, v Pertti Ripatti et al.,Respondents. |
—[*1] Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), forrespondent Pertti Ripatti. Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht ofcounsel) and Segal McCambridge Singer & Mahoney, Ltd., New York, N.Y. (Howard A. Friedand Annette G. Hasapidis of counsel), for respondent HVT, Inc. (one brief filed).
In an action to recover damages for personal injuries, the plaintiff appeals (1) as limited byhis brief, from so much of an order of the Supreme Court, Westchester County (DiBella, J.),entered July 3, 2008, as, upon reargument, adhered to its original determination granting themotion of the defendant HVT, Inc., pursuant to CPLR 4401 for judgment as a matter of lawdismissing the complaint insofar as asserted against it and, in effect, upon reargument, adheredto its original determination granting the motion of the defendant Pertti Ripatti pursuant to CPLR4401 for judgment as a matter of law on his cross claim for contribution against the defendantRye Commons Town Houses and denying his motion pursuant to CPLR 4401 for judgment as amatter of law on the issue of liability against the defendant Pertti Ripatti, and (2) from so muchof a judgment of the same court dated August 27, 2008, as, after a nonjury trial, upon thegranting of the motion of the defendant HVT, Inc., pursuant to CPLR 4401 for judgment as amatter of law dismissing the complaint insofar as asserted against it, upon the granting of themotion of the defendant Pertti Ripatti pursuant to CPLR 4401 for judgment as a matter of law onhis cross claim for contribution against the defendant Rye Commons Town Houses, upon thedenial of the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on theissue of liability against the defendant Pertti Ripatti, and upon the order, is in favor of thedefendant HVT, Inc., and against him, dismissing the complaint insofar as asserted against thatdefendant, and is conditionally in favor of the defendant Pertti Ripatti and against the defendantRye Commons Town Houses on the cross claim of the defendant Pertti Ripatti for contribution.
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it isfurther,[*2]
Ordered that the appeal from so much of the judgment asis conditionally in favor of the defendant Pertti Ripatti and against the defendant Rye CommonsTown Houses on the cross claim of the defendant Pertti Ripatti for contribution is dismissed,without costs or disbursements, as the plaintiff is not aggrieved by that portion of the judgment(see CPLR 5511); and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereof which isin favor of the defendant HVT, Inc., and against the plaintiff dismissing the complaint insofar asasserted against that defendant and substituting therefor a provision in favor of the plaintiff andagainst HVT, Inc., on the issue of liability; as so modified, the judgment is affirmed insofar asreviewed, without costs or disbursements, the order entered July 3, 2008, is modifiedaccordingly, and the matter is remitted to the Supreme Court, Westchester County, for a trial onthe issue of damages and the entry of an appropriate amended judgment thereafter.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment (see Matter of Aho, 39 NY2d 241, 248[1976]). The issues raised on the appeal from the order are brought up for review and have beenconsidered on the appeal from the judgment (see CPLR 5501 [a] [1]).
A titleholder of a vehicle is an owner within the meaning of the Vehicle and Traffic Law,and may be held liable for a plaintiff's injuries as a matter of law where that vehicle has beeninvolved in an accident which results in those injuries, and the driver of the vehicle operated itwith the titleholder's consent (seeLitvak v Fabi, 8 AD3d 631 [2004]; Ryan v Sobolevsky, 4 AD3d 222 [2004]; Sullivan v Spandau,186 AD2d 641 [1992]). In addition, New York law makes vehicle lessors, their assignees,and their agents vicariously liable as "owners" under the Vehicle and Traffic Law in an action,such as the one here, which was commenced prior to the effective date of the GravesAmendment (49 USC § 30106), which bars actions to recover damages against certainlessors of vehicles that are predicated upon the negligence of their lessees, and preempts all statelaws that purport to authorize such actions (see Hassan v Montuori, 99 NY2d 348[2003]; Ryan v Sobolevsky, 4AD3d 222 [2004]; Taughrin v Rodriguez, 254 AD2d 735 [1998]; Davis v Hall,233 AD2d 906 [1996]; Sullivan v Spandau, 186 AD2d 641 [1992]; see generally Jones v Bill, 10 NY3d550, 553-555 [2008], cert dismissed sub nom. DCFS Trust v Jones, — US—, 129 S Ct 593 [2008]).
In his amended complaint, the plaintiff alleged that the defendant HVT, Inc. (hereinafterHVT), was the owner of the vehicle operated by the defendant Pertti Ripatti, and that it wasvicariously liable for Ripatti's negligence under Vehicle and Traffic Law § 388. In itsanswer to the amended complaint, HVT denied these allegations, except to admit that it hadleased the vehicle to Ripatti, and was identified as the owner on the certificate of title; HVTnonetheless denied that it was an "owner" as defined by Vehicle and Traffic Law §§128 and 388, referring all questions of law to the court.
Facts admitted by a party's pleadings constitute formal judicial admissions (seeFalkowski v 81 & 3 of Watertown., 288 AD2d 890, 891 [2001]; Prince, Richardson onEvidence § 8-215, at 523-524 [Farrell 11th ed]). Formal judicial admissions are conclusiveof the facts admitted in the action in which they are made (see Coffin v Grand RapidsHydraulic Co., 136 NY 655 [1893]).
Here, HVT made a formal judicial admission that it was listed as owner on the certificate oftitle. A certificate of title is prima facie evidence of ownership (see Vehicle and TrafficLaw § 2108 [c]; Switzer v Aldrich, 307 NY 56 [1954]; Corrigan v DiGuardia,166 AD2d 408 [1990]; Salisbury v Smith, 115 AD2d 840 [1985]). Although thispresumption of ownership is not conclusive, and may be rebutted by evidence whichdemonstrates that another individual owned the vehicle in question (see Aronov v BruinsTransp., 294 AD2d 523 [2002]; Dorizas v Island Insulation Corp., 254 AD2d 246[1998]), there was no evidence in the record to rebut that presumption. "In reviewing adetermination made after a nonjury trial, the power of this Court is as broad as that of the trialcourt, and this Court may render the judgment it finds 'warranted by the facts,' bearing in mindthat in a close case, the trial judge had the advantage of seeing the witnesses" (Stevens vState of New York, 47 AD3d 624, 624-625 [2008], quoting Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Based on ourreview of the evidence, judgment in favor of the plaintiff and against HVT on the issue ofliability is warranted.
The plaintiff's remaining contention is without merit. Santucci, J.P., Chambers, Hall andRoman, JJ., concur.
[Recalled and vacated by 77 AD3d 650.]