| Zegarowicz v Ripatti |
| 2010 NY Slip Op 07163 [77 AD3d 650] |
| October 5, 2010 |
| 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), for respondentPertti Ripatti. Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht of counsel)and Segal McCambridge Singer & Mahoney, Ltd., New York, N.Y. (Howard A. Fried and AnnetteG. Hasapidis of counsel), for respondent HVT, Inc. (one brief filed).
Motion by the defendant HVT, Inc., for leave to reargue appeals from an order of the SupremeCourt, Westchester County, entered July 3, 2008, and a judgment of the same court dated August 27,2008, which were determined by decision and order of this Court dated November 4, 2009.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order of this Courtdated November 4, 2009 (Zegarowicz vRipatti, 67 AD3d 672 [2009]), is recalled and vacated, and the following decision and orderis substituted therefor:
In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by hisbrief, from so much of an order of the Supreme Court, Westchester County (DiBella, J.), entered July3, 2008, as, upon reargument, adhered to its original determination granting the motion of the defendantHVT, Inc., pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar asasserted against it made at the close of evidence after a jury trial and, in effect, upon reargument,adhered to its original determination granting the motion of the defendant Pertti Ripatti pursuant toCPLR 4401 for judgment as a matter of law on the cross claim of that defendant for contributionagainst the defendant Rye Commons Town Houses made at the close of evidence after the jury trialand denying his motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liabilityagainst the defendant Pertti Ripatti made at the close of evidence after the jury trial, and (2) from somuch of a judgment of the same court dated August 27, 2008, as, upon the granting of the motion ofthe defendant HVT, Inc., pursuant to CPLR 4401 for judgment as a matter of law dismissing thecomplaint insofar as asserted against it made at the close of evidence after the jury trial, upon thegranting of the motion of the defendant Pertti Ripatti pursuant to CPLR 4401 for judgment as a matterof law on the cross claim of that defendant for contribution against the defendant Rye Commons TownHouses made at the close of [*2]evidence after the jury trial, upon thedenial of the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law on the issue ofliability against the defendant Pertti Ripatti made at the close of evidence after the jury trial, and uponthe order, is in favor of the defendant HVT, Inc., and against him, dismissing the complaint insofar asasserted against that defendant, and is conditionally in favor of the defendant Pertti Ripatti and againstthe defendant Rye Commons Town Houses on the cross claim of the defendant Pertti Ripatti forcontribution.
Ordered that the appeal from the order is dismissed, without costs or disbursements; and it isfurther,
Ordered that the appeal from so much of the judgment as is conditionally in favor of the defendantPertti Ripatti and against the defendant Rye Commons Town Houses on the cross claim of thedefendant Pertti Ripatti for contribution is dismissed, without costs or disbursements, as the plaintiff isnot 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 is infavor of the defendant HVT, Inc., and against the plaintiff dismissing the complaint insofar as assertedagainst that defendant; as so modified, the judgment is affirmed insofar as reviewed, without costs ordisbursements, upon reargument, the original determination granting the motion of the defendant HVT,Inc., pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar asasserted against it, made at the close of evidence after the jury trial, is vacated and that motion isdenied, the order entered July 3, 2008, is modified accordingly, and the matter is remitted to theSupreme Court, Westchester County, for a new trial on the issue of liability, a trial on the issue ofdamages, if warranted, 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 maybe held liable for a plaintiff's injuries as a matter of law where that vehicle has been involved in anaccident which results in those injuries, and the driver of the vehicle operated it with the titleholder' sconsent (see Litvak v Fabi, 8 AD3d631 [2004]; Ryan v Sobolevsky, 4AD3d 222 [2004]; Sullivan v Spandau, 186 AD2d 641 [1992]). In addition, New Yorklaw makes vehicle lessors, their assignees, and their agents vicariously liable as "owners" under theVehicle and Traffic Law in an action, such as the one here, which was commenced prior to the effectivedate of the Graves Amendment (49 USC § 30106), which bars actions to recover damagesagainst certain lessors of vehicles that are predicated upon the negligence of their lessees, and preemptsall state laws that purport to authorize such actions (see Hassan v Montuori, 99 NY2d 348[2003]; Ryan v Sobolevsky, 4 AD3d222 [2004]; Taughrin v Rodriguez, 254 AD2d 735 [1998]; Davis v Hall, 233AD2d 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. (hereinafter HVT) wasthe owner of the vehicle operated by the defendant Pertti Ripatti, and that it was vicariously liable forRipatti's negligence under Vehicle and Traffic Law § 388. In its answer to the amendedcomplaint, HVT denied these allegations, except to admit that it had leased the vehicle to Ripatti, andwas identified as the owner on the certificate of title; HVT nonetheless denied that it was an "owner" asdefined by Vehicle and Traffic Law §§ 128 and 388, referring all questions of law to thecourt.
Facts admitted by a party's pleadings constitute formal judicial admissions (see Falkowski v 81& 3 of Watertown, 288 AD2d 890, 891 [2001]; Prince, Richardson on Evidence § 8-215,at 523-524 [Farrell 11th ed]). Formal judicial admissions are conclusive of the facts admitted in theaction in which they are made (see Coffin v Grand Rapids Hydraulic Co., 136 NY 655[1893]).
Here, HVT made a formal judicial admission that it was listed as owner on the certificate of title. Acertificate of title is prima facie evidence of ownership (see Vehicle and Traffic Law §2108 [c]; Switzer v Aldrich, 307 NY 56 [1954]; Corrigan v DiGuardia, 166 AD2d408 [1990]; Salisbury v Smith, 115 AD2d 840 [1985]) and, thus, the Supreme Court erred in,upon reargument, adhering to its original determination [*3]granting themotion of the defendant HVT, Inc., pursuant to CPLR 4401 for judgment as a matter of law dismissingthe complaint insofar as asserted against it. Since this presumption of ownership is not conclusive, andmay be rebutted by evidence which demonstrates that another individual owned the vehicle in question(see Aronov v Bruins Transp., 294 AD2d 523 [2002]; Dorizas v Island InsulationCorp., 254 AD2d 246 [1998]), the matter must be remitted to the Supreme Court, WestchesterCounty, for a new trial on the issue of liability, a trial on the issue of damages, if warranted, and theentry of an appropriate amended judgment thereafter.
The plaintiff's remaining contention is without merit. Santucci, J.P., Chambers, Hall and Roman, JJ.,concur.