| Vinueza v Tarar |
| 2012 NY Slip Op 07658 [100 AD3d 742] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Jose Vinueza, Plaintiff, v Junaid Tarar et al., Respondents,and Louis Vlahakis, Appellant. |
—[*1] Brian J. McGovern, LLC, New York, N.Y. (Michael J. Liloia of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendant Louis Vlahakis appeals(1) from an order of the Supreme Court, Queens County (Schulman, J.), dated March 11, 2011,which denied his motion for summary judgment dismissing the complaint and, in effect, all crossclaims insofar as asserted against him, and (2) as limited by his brief, from so much of an orderof the same court (Lane, J.), dated July 18, 2011, as, upon reargument, adhered to the priordetermination.
Ordered that the appeal from the order dated March 11, 2011, is dismissed, as that order wassuperseded by the order dated July 18, 2011, made upon reargument; and it is further,
Ordered that the order dated July 18, 2011, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the respondents.
On December 24, 2005, a vehicle owned by the defendant Fida Tarar and driven by thedefendant Junaid Tarar struck a Lincoln Town Car (hereinafter the Town Car) owned by thedefendant Louis Vlahakis (hereinafter the appellant) and driven by nonparty Michael Illescas atthe intersection of 36th Avenue and 32nd Street in Astoria, Queens. Junaid Tarar subsequentlypleaded guilty to vehicular assault in the second degree and driving while intoxicated. As a resultof the collision, several of the occupants of the Town Car were injured. The plaintiff, JoseVinueza, a passenger in the Town Car, commenced this action to recover damages for personalinjuries he allegedly sustained in the accident. The appellant moved for summary judgmentdismissing the complaint and, in effect, all cross claims insofar as asserted against him. By orderdated March 11, 2011, the Supreme Court denied the motion on the ground that it was untimelybecause the note of issue was filed on November 20, 2007, and the appellant's notice of motionwas not served until November 24, 2010. Thereafter, the appellant moved for leave to reargue theprior motion. In [*2]support of the motion for reargument, theappellant contended that the note of issue had been withdrawn on November 18, 2008. By orderdated July 18, 2011, the Supreme Court granted reargument but adhered to its priordetermination that the motion for summary judgment was untimely.
In the order dated July 18, 2011, the Supreme Court stated, in response to the appellant'scontention that the note of issue had been withdrawn on November 18, 2008, that the courtrecord reflects that the note of issue had not been vacated until April 25, 2011, while theappellant's motion for leave to reargue was pending. Under the circumstances of this case, uponreargument, the Supreme Court improperly adhered to its original determination denying theappellant's motion for summary judgment on the basis that it was untimely (see CPLR3212 [a]; Williams v Peralta, 37AD3d 712 [2007]; Farrington vHeidkamp, 26 AD3d 459 [2006]; Johnson v Ladin, 18 AD3d 439 [2005]; Lebreton v New YorkCity Tr. Auth., 267 AD2d 211 [1999]; Bono v Barzallo, 260 AD2d 592 [1999]).
However, upon reargument, the Supreme Court properly denied the appellant's motion forsummary judgment for a different reason. Subject to certain exceptions not applicable here,Vehicle and Traffic Law § 388 (1) "makes every owner of a vehicle liable for injuriesresulting from negligence 'in the use or operation of such vehicle . . . by any personusing or operating the same with the permission, express or implied, of such owner' "(Murdza v Zimmerman, 99 NY2d 375, 379 [2003], quoting Vehicle and Traffic Law§ 388 [1]). Under this statute, there is a presumption that the operator of a vehicle operatesit with the owner's permission (see Murdza v Zimmerman, 99 NY2d 375, 380 [2003]; Bernard v Mumuni, 22 AD3d 186[2005], affd on op below 6 NY3d 881 [2006]; Murphy v Carnesi, 30 AD3d 570, 571 [2006]; Sargeant vVillage Bindery, 296 AD2d 395, 396 [2002]). The presumption may be rebutted bysubstantial evidence that the owner did not give the operator consent (see Murdza vZimmerman, 99 NY2d at 380; Murphy v Carnesi, 30 AD3d at 571; Sargeant vVillage Bindery, 296 AD2d at 396).
On his motion for summary judgment, the appellant had the burden of demonstrating hisprima facie entitlement to judgment as a matter of law (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Thus, to obtain summary judgment on his defense thatIllescas operated the Town Car without his consent, the appellant was required to come forwardwith substantial evidence establishing that defense (see Murphy v Carnesi, 30 AD3d at571). Although the rule is not absolute or invariable, in most cases uncontradicted disavowals ofpermission by both the owner of the vehicle and the driver will constitute substantial evidencenegating permissive use and entitle the owner to summary judgment (see Country-Wide Ins. Co. v National R.R.Passenger Corp., 6 NY3d 172, 177 [2006]).
Here, the only evidence the appellant submitted on the issue of consent was his owndeposition testimony in which he asserted that on the evening prior to the accident, he gaveIllescas permission to "test-drive" the Town Car in contemplation of purchasing it, but that heonly gave him permission to drive it until 10:00 or 11:00 p.m. "The uncontradicted testimony ofa vehicle owner that the vehicle was operated without his or her permission, does not, by itself,overcome the presumption of permissive use" (Amex Assur. Co. v Kulka, 67 AD3d 614, 615 [2009]; see Talat v Thompson, 47 AD3d705, 706 [2008]; Matter of StateFarm Mut. Auto. Ins. Co. v Ellington, 27 AD3d 567, 568 [2006]). Thus, the appellantfailed to establish his prima facie entitlement to judgment as a matter of law on the issue ofconsent.
In addition, the appellant did not establish his prima facie entitlement to judgment as a matterof law on the issue of the drivers' comparative fault, since he failed to submit evidencedemonstrating that the sole proximate cause of the accident was Junaid Tarar's failure to yield theright-of-way to the Town Car in violation of Vehicle and Traffic Law § 1142 (a) (see Rahaman v Abodeledhman, 64AD3d 552 [2009]; Exime vWilliams, 45 AD3d 633 [2007]; Romano v 202 Corp., 305 AD2d 576 [2003];Cox v Nunez, 23 AD3d 427[2005]). As a result, we need not consider the sufficiency of the opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Dillon, J.P., Dickerson,Austin and Miller, JJ., concur.