| A Dan Jiang v Jin-Liang Liu |
| 2012 NY Slip Op 05603 [97 AD3d 707] |
| July 18, 2012 |
| Appellate Division, Second Department |
| A Dan Jiang et al., as Coadministrators of the Estate of Jun Liang,Deceased, et al., Respondents, v Jin-Liang Liu et al., Defendants, and Sky Express, Inc.,Appellant. |
—[*1] Caesar & Napoli, New York, N.Y. (Robert Stein of counsel), for respondents. Leahey & Johnson, P.C., New York, N.Y. (James P. Tenney and Joanne Filiberti of counsel),for defendants Jin-Liang Liu and Huo Guang Chen.
In an action to recover damages for personal injuries and wrongful death, etc., the defendantSky Express, Inc., appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Schack, J.), dated January 3, 2011, as granted that branch of the plaintiffs'cross motion which was for summary judgment on the issue of liability insofar as assertedagainst it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the appellant payable by the respondents, and that branch of the plaintiffs' cross motion whichwas for summary judgment on the issue of liability insofar as asserted against the defendant SkyExpress, Inc., is denied.
On September 1, 2006, a 15-passenger van driven by the defendant Jin-Liang Liu, which wasen route from New York to North Carolina, spun out of control, hit a guardrail, and flipped overon Interstate Route 95 in Virginia, causing the death of at least one passenger and injuries toother passengers. The plaintiffs, including a passenger injured as a result of the accident and therepresentatives of the estate of another passenger who died as a result of his injuries, commencedthis action to recover damages for, inter alia, personal injuries and wrongful death. Afterdiscovery, the plaintiffs cross-moved, inter alia, for summary judgment on the issue of liabilityagainst the defendant Sky Express, Inc. (hereinafter Sky Express). The plaintiffs contended thatSky Express was liable on the grounds that, at the time of the accident, it was both Jin-LiangLiu's employer and the lessee of the van. The Supreme Court granted that branch of the plaintiffs'cross motion, and Sky Express appeals. We reverse the order insofar as appealed from.
Pursuant to Vehicle and Traffic Law § 388, subject to certain exceptions not applicablehere, an owner of a vehicle is vicariously liable for the negligent use or operation of such vehicleby anyone operating the vehicle with the owner's express or implied consent. For purposes of theVehicle and Traffic Law, a lessee of a vehicle "having the exclusive use thereof, under a lease orotherwise, for a period greater than thirty days" is an "owner" of that vehicle (Vehicle and TrafficLaw § 128; see GE Capital Auto Lease v Allstate Ins. Co., 281 AD2d 456, 457[2001]). The plaintiffs [*2]established, prima facie, that SkyExpress was the owner of the subject van for purposes of the Vehicle and Traffic Law bysubmitting, inter alia, records of the North Carolina Division of Motor Vehicles, which listed SkyExpress as the lessee of the van, and photographs of the van which showed that the words "SkyExpress" and the contact information for Sky Express were written on the van's exterior (seeAronov v Bruins Transp., 294 AD2d 523, 524 [2002]; Dorizas v Island InsulationCorp., 254 AD2d 246, 247 [1998]; O'Neill v Habberstad Leasing, 216 AD2d 256,256-257 [1995]; Sosnowski v Kolovas, 127 AD2d 756, 758 [1987]). To rebut thisshowing, Sky Express alleged that, while it previously leased the van, the lease was terminatedon May 10, 2006, prior to the accident. In support, Sky Express submitted evidence, including abill of sale and its president's affidavit, which raised a triable issue of fact as to whether it ownedthe van within the meaning of the Vehicle and Traffic Law at the time of the accident (seeAronov v Bruins Transp., 294 AD2d at 524; Sosnowski v Kolovas, 127 AD2d at758).
Additionally, Sky Express submitted evidence sufficient to raise a triable issue of fact as towhether it was Jin-Liang Liu's employer at the time of the accident. Sky Express submittedevidence showing that its vice president was not acting on its behalf when he hired Jin-Liang Liuto drive the subject van. While the plaintiffs assert that the evidence submitted by Sky Expresswas not credible, " '[i]t is not the court's function on a motion for summary judgment to assesscredibility' " (Silva v FC BeekmanAssoc., LLC, 92 AD3d 754, 756 [2012], quoting Ferrante v American LungAssn., 90 NY2d 623, 631 [1997]; see Brown v Kass, 91 AD3d 894, 895 [2012]; Polvino v IslandGroup Admin., 264 AD2d 720, 721 [1999]).
Accordingly, the Supreme Court should have denied that branch of the plaintiffs' crossmotion which was for summary judgment on the issue of liability insofar as asserted against SkyExpress. Rivera, J.P., Dickerson, Hall and Cohen, JJ., concur.