Proof Vehicle Was Stolen at the Time of the Accident Defeated Action Based Upon Vehicle-Owner’s Vicarious Liability

The Second Department determined defendant’s evidence that her vehicle had been stolen at the time of the accident entitled her to summary judgment in an action based upon the vehicle-owner’s vicarious liability:

Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law …, the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner’s express or implied consent … . This statute creates a presumption that the driver was using the vehicle with the owner’s express or implied permission …, which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner’s consent … . Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use … . Fuentes v Virgil, 2014 NY Slip Op 04899, 2nd Dept 7-2-14