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EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE.

The Second Department determined defendants father and son (Daniel) did not submit sufficient evidence that Daniel was driving his father’s car without permission to warrant summary judgment. Daniel had driven the car through a person’s house, causing nearly $190,000 in damage. The insurer sued defendants:

Vehicle and Traffic Law § 388(1) “makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle . . . by any person using or operating the same with the permission, express or implied, of such owner'”… . Under this statute, there is a presumption that the operator of a vehicle operates it with the owner’s permission … . The presumption may be rebutted by substantial evidence that the owner did not give the operator consent … . …

“The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use”… . Additionally, ” [i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury'” … .

“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” … . However, “disavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner” … . Ultimately, “whether summary judgment is warranted depends on the strength and plausibility of the disavowals [of permission], and whether they leave room for doubts that are best left for the jury” … .

Under the circumstances of this case, the Supreme Court properly determined that the appellant failed to sufficiently rebut the strong presumption pursuant to Vehicle and Traffic Law § 388 that Daniel was operating the vehicle with his permission … . Daniel had access to the appellant’s residence. Further, the key to the vehicle was kept in a “central location” inside a bin located in the kitchen of the appellant’s residence. Additionally, on previous occasions, Daniel had been permitted by the appellant to drive other vehicles owned by the appellant. Accordingly, the Supreme Court properly concluded that the appellant failed to establish his prima facie entitlement to judgment as a matter of law and, as a result, we need not consider the sufficiency of the opposition papers … . State Farm Fire & Cas. Co. v Sajewski, 2017 NY Slip Op 04310, 2nd Dept 5-31-17

NEGLIGENCE (VEHICLE AND TRAFFIC LAW, OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)/VEHICLE AND TRAFFIC LAW (VEHICLE OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)/TRAFFIC ACCIDENTS (VEHICLE AND TRAFFIC LAW, OWNER’S VICARIOUS LIABILITY, EVIDENCE THE SON WAS DRIVING HIS FATHER’S CAR WITHOUT HIS FATHER’S PERMISSION, THEREBY RELIEVING THE FATHER OF LIABILITY, WAS NOT SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN THIS PROPERTY DAMAGE CASE)

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