SPOTO v. Y & H Garages, Defendant–Respondent. (2025)

Order, Supreme Court, New York County (James G. Clynes, J.), entered October 5, 2023, which denied defendant Donna D. Piard's motion for summary judgment dismissing plaintiff's negligence claim against her and on her cross-claim against defendants Y & H Garages and Leonardo E. Matos, unanimously affirmed, without costs.

Supreme Court correctly denied Piard's motion for summary judgment dismissing plaintiff's negligence claim (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).  As the owner of the vehicle that crashed into the back of plaintiff's vehicle, Piard is liable for injuries to persons or property resulting from the negligent use or operation of her vehicle “by any person using or operating the same with [her] permission, express or implied” (Vehicle and Traffic Law § 388[1]).  Piard failed to rebut the presumption that defendant Matos, who was driving her vehicle at the time of the accident, was using her vehicle with her express or implied permission (see Murdza v. Zimmerman, 99 N.Y.2d 375, 380, 756 N.Y.S.2d 505, 786 N.E.2d 440 [2003]).  In that regard, Piard failed to offer substantial evidence sufficient to show that her vehicle was not operated with her consent, as she proffered only her own affidavit disavowing consent, without any statements or testimony from either Matos or Y & H, his employer, or any documentary evidence (see Murdza v. Zimmerman, 99 N.Y.2d at 380, 756 N.Y.S.2d 505, 786 N.E.2d 440;  compare Country–Wide Ins. Co. v. National R.R. Passenger Corp., 6 N.Y.3d 172, 177–179, 811 N.Y.S.2d 302, 844 N.E.2d 756 [2006]).  Notably, at this stage plaintiff had not had the opportunity to depose either Piard or Y & H's witness (see CPLR 3212[f]).

Contrary to Piard's contention, the law of the case does not apply here (see Matter of Jose V., 214 A.D.3d 523, 523, 185 N.Y.S.3d 119 [1st Dept. 2023]).  Plaintiff is not a party to the related action arising from the same three-car accident, joined with the instant action for trial, in which Piard's summary judgment motion dismissing plaintiff's claim against her was granted, upon renewal, after party depositions were taken.

Supreme Court also properly denied summary judgment on Piard's cross-claim against Y & H, since the affidavit proffered by Y & H raised an issue of fact as to whether Matos was acting “in furtherance of [Y & H's] business and within the scope of employment” (Rivera v. State of New York, 34 N.Y.3d 383, 389–390, 119 N.Y.S.3d 749, 142 N.E.3d 641 [2019] [internal quotation marks omitted]).

We have considered Piard's remaining contentions and find them unavailing.