LIBERTY MUTUAL INSURANCE COMPANY v. GENERAL ACCIDENT INSURANCE COMPANY (2000)

 Supreme Court properly denied plaintiff's motion for summary judgment and granted the cross motion of defendants General Accident Insurance Company and Marshall S. Toole for summary judgment.  “It is well settled that Vehicle and Traffic Law § 388(1) ‘creates a strong presumption that the driver of a vehicle is operating it with the owner's permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary’ ” (Leonard v. Karlewicz, 215 A.D.2d 973, 974, 627 N.Y.S.2d 169, quoting Greater N.Y. Mut. Ins. Co. v. Clark, 205 A.D.2d 857, 858, 613 N.Y.S.2d 295, lv. denied 84 N.Y.2d 807, 621 N.Y.S.2d 516, 645 N.E.2d 1216).   The court properly determined that the presumption was rebutted as a matter of law based upon uncontradicted evidence that defendant Mary Louise Little did not have the express permission of Toole to operate his vehicle at the time of the accident, and the absence of competent evidence from which Toole's permission or authority could be inferred (see, Barrett v. McNulty, 27 N.Y.2d 928, 929, 318 N.Y.S.2d 144, 266 N.E.2d 823;  Leonard v. Karlewicz, supra, at 975-976, 627 N.Y.S.2d 169;  State Farm Mut. Auto. Ins. v. White, 175 A.D.2d 122, 123, 572 N.Y.S.2d 21).

 Plaintiff's first motion seeking leave to renew or reargue is not based upon new facts unavailable at the time of the original motion and is therefore a motion for reargument.   The denial of that motion is not appealable (see, Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984, 562 N.Y.S.2d 5).   The second motion seeking the same relief is supported by new evidence and is properly characterized as a motion for renewal (see, Perla Assocs. v. Ginsberg, 256 A.D.2d 303, 681 N.Y.S.2d 316).   The court properly denied the motion, however, because the new evidence, a self-serving affidavit by Little contradicting her earlier accounts, cannot be used by plaintiff to create an issue of fact (see, Ferber v. Farm Family Cas. Ins. Co., 272 A.D.2d 747, 707 N.Y.S.2d 545;  Zylinski v. Garito Contr., 268 A.D.2d 427, 702 N.Y.S.2d 86).

Judgment unanimously affirmed with costs.

MEMORANDUM: