BLACKCHIEF v. PRIM III (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion of defendants Timothy J. Herbst and Renee L. Herbst is granted, and the complaint against them is dismissed.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Troy Blackchief (plaintiff), an on-duty police officer, who was struck by a vehicle owned by defendants Timothy J. Herbst and Renee L. Herbst (collectively, defendants). At the time of the accident, plaintiff was assisting in a police pursuit of defendants’ vehicle, which had been stolen from defendants’ residential driveway by defendant Patrick J. Prim, III.

We agree with defendants that Supreme Court erred in denying their motion seeking summary judgment dismissing the complaint against them. Defendants met their initial burden on the claim of permissive use by submitting the police report regarding the theft, video and still images capturing the theft, affirmations from defendants attesting to the theft, and documentation reflecting the undisputed nature of Prim's related criminal guilty plea (see Country-Wide Ins. Co. v. National R.R. Passenger Corp., 6 N.Y.3d 172, 175-176, 180, 811 N.Y.S.2d 302, 844 N.E.2d 756 [2006]; Calhoun v. Maclin, Sup Ct, Erie County, 2023, Chimes, J., index No. 801838/2022, affd for reasons stated below 219 A.D.3d 1714, 195 N.Y.S.3d 853 [4th Dept. 2023]; Stevens v. Calspan-Corp., 292 A.D.2d 809, 810, 739 N.Y.S.2d 792 [4th Dept. 2002]). Defendants further met their initial burden on the claim that they violated Vehicle and Traffic Law § 1210 (a) by establishing that the statute is inapplicable to the instant case. Defendants’ vehicle “had not been kept in a parking lot” or any other area to which the statute applies (Stevens, 292 A.D.2d at 810, 739 N.Y.S.2d 792 [internal quotation marks omitted]; see Vehicle and Traffic Law §§ 129-b, 1000 [a]). In opposition, plaintiffs failed to raise a material issue of fact as to either the lack of permissive use or the applicability of Vehicle and Traffic Law § 1210 (a), and they failed to demonstrate that facts essential to oppose the motion exist and might be obtained by additional discovery (see Bratge v. Simons, 173 A.D.3d 1623, 1624, 102 N.Y.S.3d 818 [4th Dept. 2019]; Stevens, 292 A.D.2d at 810, 739 N.Y.S.2d 792).