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Vehicle Owner’s Uncontradicted Deposition Testimony Not Enough to Overcome Presumption Vehicle Driven with Owner’s Consent

The Second Department determined that the defendant vehicle owner (Witsell) did not overcome the presumption her vehicle was being driven with her consent:

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 …

Here, Witsell failed to establish her entitlement to judgment as a matter of law. … “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” … . Since Witsell failed to meet her initial burden as the movant, the burden never shifted to the party opposing the motion to raise a triable issue of fact… . Ellis v Witsell, 2014 NY Slip Op 00630, 2nd Dept 2-5-14

 

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Defendant Estopped from Claiming He Was Not Properly Served Because He Never Notified DMV of His Change of Address

The Second Department determined the defendant, who brought a motion to vacate a default judgment in an automobile-accident case, was estopped from claiming he was not properly served because he never notified the Department of Motor Vehicles of his change of address:

Since the respondent failed to notify the DMV of his change of residence, as required by Vehicle and Traffic Law § 505(5), he was estopped from raising a claim of defective service … . Accordingly, that branch of the respondent’s motion which was pursuant to CPLR 5015(a)(4), based on lack of personal jurisdiction, should have been denied. Likewise, the respondent was not entitled to relief pursuant to CPLR 5015(a)(1), based upon excusable default; the respondent’s purported change of residence is not a reasonable excuse, because he failed to comply with Vehicle and Traffic Law § 505(5) … .

Moreover, the respondent was not entitled to relief pursuant to CPLR 317, since his failure to receive notice of the summons was a deliberate attempt to avoid such notice… . Canales v Flores, 2013 NY Slip Op 08584, 2nd Dept 12-26-13

 

 

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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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Sentencing Court’s Reference to a Fine for Driving While Intoxicated as “Mandatory” Required Remittal for Resentencing

The Third Department noted that imposition of both a fine and imprisonment for Driving While Intoxicated is discretionary.  County Court’s indication that the fine was “mandatory” required remittal for resentencing.  People v Olmstead, 105214, 3rd Dept 11-21-13

 

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Plaintiff Entitled to Summary Judgment Where Defendant Crossed Into Her Lane Attempting to Make a Left Turn

The Fourth Department determined plaintiff (Daniels) whose car was struck head-on by defendant (Rumsey), whose car crossed into plaintiff’s lane attempting to make a left turn into a parking lot, was entitled to summary judgment, even though plaintiff may have been driving five miles an hour above the speed-limit:

…[W]e conclude that the court properly granted Daniels’s motion for summary judgment dismissing the complaint and cross claims against her.  Pursuant to Vehicle and Traffic Law § 1141, “[t]he driver of a vehicle intending to turn to the left . . . into . . . [a] private road[] or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard.” To meet her initial burden on her motion, Daniels was required “to establish both that [Rumsey’s] vehicle suddenly entered the lane where [Daniels] was operating [her vehicle] in a lawful and prudent manner and that there was nothing [Daniels] could have done to avoid the collision” … .  Daniels met that burden by submitting evidence that the accident occurred after Rumsey turned her vehicle left into Daniels’s path of travel in the southbound curb lane of Delaware Avenue, that Daniels had the right-of-way, and that Daniels was proceeding at a speed of between 30 and 35 miles per hour at the time of the accident, i.e., no more than five miles per hour above the posted speed limit.  Daniels also established that she did not see Rumsey’s vehicle until its grill was in her lane of travel, and that she had only “[f]ractions of a second” to take evasive measures, which proved unsuccessful.  Contrary to Rumsey’s contention, the fact that Daniels may have been driving at a speed in excess of five miles per hour over the posted speed limit of 30 miles per hour is inconsequential inasmuch as there is no indication that she could have avoided the accident even if she had been traveling at a speed at or below the posted speed limit … . Daniels v Rumsey, 1168, 4th Dept 11-15-13

 

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Police Officer (a Passenger in a Police Car) Who Was Injured by Underinsured Driver Was Covered By Police-Officer-Driver’s (Private) Underinsured Motorist Endorsement

In a full-fledged opinion by Justice Hall, the Second Department determined that a police car is a “motor vehicle” within the meaning of an uninsured/underinsured motorist endorsement in a [State Farm] policy held by the driver.  The plaintiff, a police officer, was injured in an automobile accident with an underinsured driver. The question was whether the State Farm policy held by the driver of the police car, another police officer, could be financially responsible under the uninsured/underinsured endorsement in the driver’s policy.  The Second Department held that the driver’s underinsured endorsement covered the injured (police-officer) passenger.  The question at issue was whether the exclusion of “police vehicle” from the definition of “motor vehicle” in Vehicle and Traffic Law 388(2) applied.  The court ruled it did not and determined the operative definition of “motor vehicle” in this context was in Vehicle and Traffic Law 125:

Contrary to State Farm’s contention, VTL § 125, instead of VTL § 388(2), should be used to define the term “motor vehicle,” as it appears in the uninsured/underinsured motorist endorsement. VTL § 125 is a general provision that defines the relevant terminology for the entire VTL. In fact, VTL § 388(2) acknowledges this by incorporating by reference the VTL § 125 definition of “motor vehicle.” Additionally, it has been recognized that uninsured motorist coverage extends to all “motor vehicles,” as defined by VTL § 125 (…Insurance Law § 5202[a]…).

Police vehicles fall within the definition of a “motor vehicle” under VTL § 125 because they constitute a “vehicle operated or driven upon a public highway which is propelled by any power other than muscular power,” and they do not fall within any of the exclusions provided in the statute. Thus, the police vehicle at issue here falls within the definition of a “motor vehicle” under the uninsured/underinsured motorist endorsement.  Matter of State Farm Mut Auto Ins Co v Fitzgerald, 2013 NY Slip Op 07186, 2nd Dept 11-6-13

 

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Recklessness Demonstrated In Operation of Vehicle

In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s convictions for reckless manslaughter and reckless assault after defendant’s car struck another car head on.  There was evidence defendant was deliberately speeding (134 mph) in an area he knew to include a sharp turn.  The court explained the difference between recklessness and criminal negligence in this context:

The mental states of recklessness and criminal negligence share many similarities.  Both require that there be a “substantial and unjustifiable risk” that death or injury will occur; that the defendant engage in some blameworthy conduct contributing to that risk; and that the defendant’s conduct amount to a “gross deviation” from how a reasonable person would act (compare Penal Law § 15.05 [3] [Recklessly] with Penal Law  § 15.05 [4] [Criminal Negligence]).  The only distinction between the two mental states is that recklessness requires that the defendant be “aware of” and “consciously disregard” the risk while criminal negligence is met when the defendant negligently fails to perceive the risk … .

In the context of automobile accidents involving speeding, we have held that the culpable risk-creating conduct necessary to support a finding of recklessness or criminal negligence generally requires “some additional affirmative act” aside from “driving faster than the posted speed limit” … .  Here, there was ample proof that defendant did more than merely drive faster than the legal limit — indeed, there was eyewitness testimony that he was traveling at more than double the posted speed limit of 55 miles per hour.  Moreover, before the collision, defendant stopped his vehicle in the middle of the unlit road and revved the engine. He then hit the gas pedal and accelerated to an extremely high rate of speed before crossing the double line into oncoming traffic.  Viewed in the light most favorable to the People, the evidence showed that defendant used a public road as his personal drag strip to showcase the capabilities of his modified sports car.  Although the jury acquitted defendant of driving while ability impaired (by alcohol), there was evidence that he had been drinking and smoking marijuana that evening … .  The evidence therefore demonstrated that defendant engaged in conduct exhibiting “the kind of seriously blameworthy carelessness whose seriousness would be apparent to anyone who shares the community’s general sense of right and wrong” … .

Furthermore, the proof was sufficient to support the jury’s conclusion that defendant acted recklessly — by consciously disregarding the risk he created — as opposed to negligently failing to perceive that risk.  Defendant was familiar with the curve in the road …, having driven by there on a number of prior occasions, and he had been warned twice about speeding into that very section of the road. People v Asaro, 158, CtApp 10-22-13

 

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Officer Outside Village Limits Did Not Have Jurisdiction to Arrest for Traffic Offenses but Arrest for DWI Okay

The Fourth Department determined a police officer, who was outside his jurisdiction when he arrested the defendant for DWI and traffic offenses, did not have the authority to arrest for the “petty offenses” but did have the authority to arrest for DWI:

The authority of a police officer to arrest an individual for a “petty offense” is limited to circumstances in which the officer “has reasonable cause to believe that such person has committed such offense in his or her presence” (CPL 140.10 [1] [a]), and “only when .. . [s]uch offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area” (CPL140.10 [2] [a]).  The term “petty offense” is defined as “a violation or a traffic infraction” (CPL 1.20 [39]). Here, the arresting officer is employed by the Village of Gowanda, and it is undisputed that the arrest did not take place within 100 yards of the village limits. Thus, we conclude that the officer exceeded his jurisdictional authority when he arrested defendant for committing the traffic infractions, and the court should have granted defendant’s motion insofar as it sought dismissal of those counts.

We further conclude, however, that the court properly refused to dismiss counts one and four of the indictment, charging defendant with felony driving while intoxicated and resisting arrest, respectively. Pursuant to CPL 140.10 (3), a police officer may arrest a person for a crime, as opposed to a petty offense, “whether or not such crime was committed within the geographical area of such police officer’s employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime.”  People v Twoguns, 668, 4th Dept 7-5-13

 

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County Court’s Suppression of Statements and Fruits of Search Reversed

The Third Department reversed County Court’s suppression of defendant’s statements and County Court’s finding that defendant had not voluntarily consented to the search of his car (both based on the absence of Miranda warnings).   The Third Department determined a reasonable person innocent of a crime would still have felt he was free to leave (i.e., that he was not in custody) after his failure of field sobriety tests and a negative alcosensor test.  The Third Department further noted that the failure to provide Miranda warnings would not necessarily render a consent to search involuntary:

The court ….overlooked the settled proposition that “[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda” … .The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory…. The Troopers’ inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody….   In our view, the Troopers’ observations of defendant’s condition justified the further  detention  for the  limited  purpose  of  investigating whether  he  was  operating his motor  vehicle in an  impaired condition… .  People v Brown, 105134, 3rd Dept 6-27-13

 

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People’s Expert Was Not Qualified to Testify About “Reverse Extrapolation” in DWI Prosecution/”Reverse Extrapolation” Is an Accepted Theory However

In this DWI prosecution, the Third Department determined the People’s expert was not qualified to offer testimony about “reverse extrapolation,” but that the theory itself was sound:

[We reject defendant’s generalized challenge to] the  theory  of  reverse extrapolation – the process by which an expert, taking into consideration, among other  things, an individual’s known  BAC at a particular point  in time, renders  an  opinion  as  to  the  individual’s BAC at an earlier point in time. Assuming the expert in question is qualified and a proper foundation has been laid for such opinion, reverse extrapolation testimony may be….  Here, however, the People failed to lay a proper factual foundation for [the expert’s] testimony and, therefore, defendant’s objection in this regard should have been sustained.  People v Menegan, 105337, 3rd Dept, 6-13-13

 

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