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Driver’s Statement In a Plea Proceeding that She Did Not Have Permission to Use Defendant-Owner’s Vehicle at the Time of the Accident Insufficient to Overcome Statutory Presumption Of Operation with Owner’s Consent

The Second Department determined defendant (Tumbiolo) had not overcome the presumption that the driver (Commisso) of Tumbiolo’s vehicle was operating the vehicle with Tumbiolo’s permission:

Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner’s consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner’s permission” … . “Although the rule is not absolute or invariable, in most cases uncontradicted disavowals of permission by both the owner of the vehicle and the driver will constitute substantial evidence negating permissive use and entitle the owner to summary judgment”… . * *

…[T]o the extent that Tumbiolo seeks to utilize a transcript of a plea proceeding dated October 21, 2011, wherein Commisso answered “[n]o” when asked if she had “permission” to “take” the subject vehicle, Commisso’s prior statement is not admissible under the provisions of CPLR 4517. Further, Commisso’s prior statement would be admissible as an “admission by a party” only as against Commisso, not as against the plaintiff … . Additionally, Tumbiolo failed to show that Commisso’s prior statement would be admissible as a declaration against pecuniary, proprietary, or penal interest, which are exceptions to the rule against hearsay (… Jerome Prince, Richardson on Evidence § 8-403 [Farrell 11th ed 2008]). Diaz v Tumbiolo, 2013 NY Slip Op 07930, 2nd Dept 11-27-13

 

 

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