RAMON NEWTON PLAINTIFF RESPONDENT v. SAMANTHA VANCHERI IAN KRAUS AS THE ADMINISTRATOR OF THE ESTATE OF EDWARD KRAUS DECEASED DAVID VENTI ALSO KNOWN AS JOSHUA VENTI DEFENDANTS APPELLANTS ET AL DEFENDANTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the claim pursuant to Vehicle and Traffic Law § 388 and as modified the order is affirmed without costs.

Memorandum: This personal injury action arises from a motor vehicle accident in which a stolen Chrysler being driven by an unknown person, defendant John Doe, struck the car in which plaintiff was a passenger. The owners of the Chrysler were defendant Samantha L. Vancheri and the late Edward J. Kraus. Defendant David Venti, also known as Joshua Venti, had been operating that car and left it unattended immediately before it was stolen. Vancheri, defendant Ian T. Kraus, as the Administrator of the Estate of Edward J. Kraus, and Venti (collectively, defendants) appeal from an order that, inter alia, denied their motion to dismiss the amended complaint against them.

Defendants contend that the two-day lapse between the theft and the accident extinguished the claim against them of liability under Vehicle and Traffic Law § 1210 (a), the statute governing unattended motor vehicles. The purpose of that statute “is two-fold: (1) as a public safety measure designed to protect life and property of others by conferring a cause of action upon anyone damaged as a consequence of its violation and (2) as a deterrent to theft” (Guaspari v Gorsky, 36 AD2d 225, 228 [4th Dept 1971], appeal dismissed 29 NY2d 891 [1972]). We conclude that, in light of the circumstances in which the vehicle was stolen, the submissions on defendants’ motion do not show as a matter of law that the lapse of time between the theft and the accident “vitiated any proximate cause” between the alleged negligence and the accident (Oishei v Gebura, 221 AD3d 1529, 1531 [4th Dept 2023]) and thus do not “establish conclusively that plaintiff has no cause of action” (Lemiszko v Mosovich 2014 Family Trust, 191 AD3d 1363, 1365 [4th Dept 2021] [internal quotation marks omitted]).

Defendants further contend that the claim pursuant to Vehicle and Traffic Law § 388, against Vancheri and Ian T. Kraus, must be dismissed because plaintiff conceded in his amended complaint that the vehicle was stolen. We agree. Section 388 (1) provides that, generally, the owner of a motor vehicle is liable for the negligence of anyone who operates it with the owner's express or implied consent. Although a presumption exists “that the operator was driving the vehicle with the owner's express or implied consent” (Staropoli v Agrelopo, LLC, 136 AD3d 791, 792 [2d Dept 2016]), plaintiff did not state a claim under Vehicle and Traffic Law § 388 because his concession that the vehicle was stolen rebutted the presumption that the vehicle was driven with the owners’ consent (see generally Holmes v McCrea, 186 AD3d 1043, 1044-1045 [4th Dept 2020]; Piano Exch. v Weber, 168 AD3d 1017, 1018-1019 [2d Dept 2019]; State Farm Fire & Cas. Co. v Sajewski, 150 AD3d 1297, 1298 [2d Dept 2017]). Therefore, we modify the order by granting the motion in part and dismissing the claim pursuant to Vehicle and Traffic Law § 388.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court