HIDALGO v. John Doe, Defendant. (2023)

Supreme Court, Appellate Division, First Department, New York.

Daurin D. HIDALGO et al., Plaintiffs–Appellants, v. WCBS–TV, Defendant–Respondent, John Doe, Defendant.

1031

Decided: November 16, 2023

Renwick, P.J., Kern, Gesmer, Shulman, O'Neill Levy, JJ.

Mitchell Dranow, Sea Cliff, for appellants. Newman Law Associates PLLC, New York (Gregory Bakos of counsel), for respondent.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on July 12, 2022, which, to the extent appealed from as limited by the briefs, granted defendant WCBS–TV's CPLR 3211(a)(7) motion to dismiss, unanimously affirmed, with costs.

WCBS–NY submitted unrefuted evidence establishing that the van involved in the accident had been stolen, thereby rebutting the presumption that it was being operated with its consent (see Vehicle and Traffic Law § 388[1]; Alvarez v. Bivens, 114 A.D.3d 526, 980 N.Y.S.2d 425 [1st Dept. 2014]). In opposition, plaintiffs failed to raise an issue of fact as to whether WCBS–NY had violated Vehicle and Traffic Law § 1210(a).

Plaintiffs’ argument that WCBS–TV's evidence was inadmissible is unpreserved and we decline to consider it.

We have considered plaintiffs’ remaining arguments, including that WCBS–TV's motion was premature, and find them unavailing.

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