AMERICAN COUNTRY INSURANCE COMPANY v. Anthony Rodriguez, et al., Defendants–Appellants. (2019)

Order, Supreme Court, Bronx County (Ben Barbato, J.), entered July 6, 2017, which to the extent appealed from as limited by the briefs, granted plaintiff American Country Insurance Company's motion for summary judgment for a declaration that it is not obligated to provide coverage to defendants, unanimously affirmed, without costs.

Plaintiff submitted substantial evidence to rebut the presumption that defendant Mark Umude, the brother of plaintiff's insured, Amoghene Umude, was operating Amoghene's vehicle with Amoghene's permission at the time of the accident (see Vehicle and Traffic Law § 388[1]; Tsadok v. Veneziano, 65 A.D.3d 1130, 1132, 885 N.Y.S.2d 336 [2d Dept. 2009]; Panteleon v. Amaya, 85 A.D.3d 993, 994–995, 927 N.Y.S.2d 85 [2d Dept. 2011]).  In addition to Amoghene's uncontradicted testimony that he did not give his brother permission to use the vehicle and was asleep when his brother took the keys and crashed it, Amoghene promptly reported to the police that Mark did not have his permission to use the vehicle, and subsequently filed an official complaint concerning Mark's unauthorized use.  Mark was indicted and criminally prosecuted in connection with his unauthorized operation of the vehicle (see Tsadok at 1132, 885 N.Y.S.2d 336; cf.  Leon v. Citywide Towing, Inc., 111 A.D.3d 464, 465, 974 N.Y.S.2d 448 [1st Dept. 2013]).

Defendants failed to submit competent evidence suggesting implausibility, collusion, or implied permission so as to require the issue of consent to be submitted to a jury (see Country–Wide Ins. Co. v National R.R. Passenger Corp., 6 N.Y.3d 172, 178, 811 N.Y.S.2d 302, 844 N.E.2d 756 [2006]).  Contrary to defendants' argument, Amoghene did not delay in informing the police after he learned of the unauthorized use (cf. Motor Veh. Acc. Indem. Corp. v. Levinson, 218 A.D.2d 606, 607, 630 N.Y.S.2d 747 [1st Dept. 1995]).

Written statements from nonparties alleging Mark's prior use of the vehicle were not submitted in admissible form, because, even though they were notarized, they contained no jurat or any other indication that the signatories had been sworn, or even a statement from the signatories as to the truth of the matters to which they subscribed their names (see Lillo–Arouca v. Masoud, 163 A.D.3d 646, 647, 79 N.Y.S.3d 651 [2d Dept. 2018]; Matter of MacKenzie v. Ghartey, 131 A.D.3d 638, 638–639, 15 N.Y.S.3d 418 [2d Dept. 2015], lv denied 25 N.Y.3d 914, 2015 WL 5010160 [2015]; cf. Collins v. AA Truck Renting Corp., 209 A.D.2d 363, 618 N.Y.S.2d 801 [1st Dept. 1994]).  The motion court also properly determined that the remaining hearsay evidence about Mark's prior use of the vehicle for business purposes was insufficient to defeat summary judgment (see Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 A.D.3d 582, 584, 71 N.Y.S.3d 473 [1st Dept. 2018]).

We have considered defendants' remaining arguments and find them unavailing.