LEWIS v. CALDWELL (1997)

Supreme Court properly denied the motion of defendant for summary judgment dismissing the complaint on the ground that the operator of the vehicle owned by defendant was not driving the vehicle with defendant's permission.  “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 denial by defendant that she gave permission to the operator, without more, does not change the status of the issue from one of fact to one of law (see, Blunt v. Zinni, 32 A.D.2d 882, 883, 302 N.Y.S.2d 504, affd. 27 N.Y.2d 521, 312 N.Y.S.2d 996, 261 N.E.2d 107).

Order unanimously affirmed with costs.

MEMORANDUM: