| Lopes v Bain |
| 2011 NY Slip Op 02512 [82 AD3d 1553] |
| March 31, 2011 |
| Appellate Division, Third Department |
| Michael Lopes, as Administrator of the Estate of Michaella K.Lopes, Deceased, Appellant, v William H. Bain III, Respondent. |
—[*1] Law Office of Theresa J. Puleo, Albany (Laurie M. Lewis of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (McKeighan, J.), entered May 18, 2010in Washington County, which granted defendant's motion to dismiss the complaint.
In the early morning hours of April 21, 2008, Dustin St. Andrews, then 16 years old andwithout a driver's license, was involved in a car accident while driving a motor vehicle owned bydefendant, his uncle. St. Andrews was legally intoxicated at the time and lost control of thevehicle while traveling at speeds near 100 miles per hour. The car left the road and struck a tree,killing two of the four passengers. Defendant had been out of the state on a business trip sinceDecember 2007; he was informed later that morning by telephone that his vacant home showedsigns of forced entry and that his nephew, St. Andrews, had been driving his car at the time of thefatal accident. Defendant denied giving St. Andrews permission to use the car, and pressedcharges for the forcible entry and theft.
St. Andrews was charged in a 23-count indictment, including charges of vehicular homicideand burglary, and ultimately pleaded guilty to one count of vehicular manslaughter in the firstdegree in satisfaction of all charges. In the course of his plea allocution, St. Andrews stated thathe did not have permission to drive defendant's car and, in fact, had stolen it. Plaintiff, theadministrator of the estate of one of the passengers who died as a result of the [*2]accident, commenced this wrongful death action claiming thatdefendant, as the owner of the car, was vicariously liable under Vehicle and Traffic Law §388 because St. Andrews drove the vehicle with defendant's either explicit or implicit consent.Defendant brought this pre-answer motion to dismiss pursuant to CPLR 3211 (a) (1) and(7).[FN1]Supreme Court granted the motion, and plaintiff appeals.
Vehicle and Traffic Law § 388 states that "[e]very owner of a vehicle used or operatedin this state shall be liable and responsible for death or injuries to person or property resultingfrom negligence in the use or operation of such vehicle," by any person using the vehicle with theowner's express or implied permission (Vehicle and Traffic Law § 388 [1]). "The statutecreates a rebuttable presumption that an operator of a motor vehicle is driving with the owner'sconsent" (New York Cent. Mut. Fire Ins. Co. v Nationwide Mut. Ins. Co., 307 AD2d449, 450 [2003] [citation omitted]; see Bost v Thomas, 275 AD2d 513, 514 [2000]).Plaintiff contends that this presumption was not conclusively rebutted as, even accepting theabsence of proof of explicit permission, there were unresolved issues as to whether "a course ofconduct had built up between the parties implying permissive use" (Schulman v ConsolidatedEdison Co. of N.Y., 85 AD2d 186, 187 [1982]).
Significantly, "[t]o succeed on a motion under CPLR 3211 (a) (1), a defendant must showthat the documentary evidence upon which the motion is predicated resolves all factual issues asa matter of law and definitively disposes of the plaintiff's claim" (Keehle v Diocese of Syracuse, 80AD3d 974, 974-975 [2011] [internal quotation marks and citations omitted]; see Bordeleau v State of New York, 74AD3d 1688, 1689 [2010]). Defendant's proof in support of his claim of a complete defensepursuant to Vehicle and Traffic Law § 388 consists mainly of affidavits, which do not meetthe requirements of "documentary evidence" as contemplated by CPLR 3211 (a) (1) (see Crepin v Fogarty, 59 AD3d837, 838 [2009]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347[2003]). Even assuming that the transcript of St. Andrews' plea allocution may be considereddocumentary evidence under the statute as a judicial record (see Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2010]), the factremains that this statement does not definitively refute, as a matter of law, plaintiff's claim thatthere was implied permission based upon past conduct (see Matter of Village of Delhi v Town of Delhi, 72 AD3d 1476,1478 [2010]).[FN2]Accordingly, dismissal pursuant to CPLR 3211 (a) (1) was not appropriate.
With respect to CPLR 3211 (a) (7), we note that, to succeed under this statutory section, "theallegations in the complaint are accepted as true and accorded the benefit of every possiblefavorable inference to determine if the facts, as alleged, fit within any cognizable legal theory"(Keehle v Diocese of Syracuse, 80 AD3d at 974 [internal quotation marks and citationomitted]; see Bordeleau v State of New York, 74 AD3d at 1688). Assessing the pleadingsin that light, we find that plaintiff sufficiently states a viable claim of vicarious liability againstdefendant [*3]pursuant to Vehicle and Traffic Law § 388.Defendant contends that "[t]he rule that the facts alleged are presumed to be true does not apply. . . to legal conclusions or to factual claims which are either inherently incredible orflatly contradicted by documentary evidence" (Quail Ridge Assoc. v Chemical Bank, 162AD2d 917, 918 [1990], lv dismissed 76 NY2d 936 [1990]). However, as the proof doesnot unequivocally disprove the allegations of implied permission set forth in the complaint, wefind no basis for dismissal pursuant to CPLR 3211 (a) (7).
Lahtinen, J.P., Kavanagh and McCarthy, JJ., concur. Ordered that the order is reversed, onthe law, with costs, motion denied and matter remitted to the Supreme Court to permit defendantto serve an answer within 20 days of the date of this Court's decision.
Footnote 1: Counsel for both partiesconfirmed at oral argument that there was no conversion to summary judgment before SupremeCourt (see CPLR 3211 [c]).
Footnote 2: We note that, attached toplaintiff's response to the dismissal motion, plaintiff included several witness statementsindicating that St. Andrews had been seen driving defendant's vehicle prior to the date of theaccident.