FAVATA v. JACOBS EAN LLC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Catherine Rizzo, J.), dated April 14, 2025.  The order, insofar as appealed from, granted that branch of the motion of the defendant EAN Holdings, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it and denied those branches of the plaintiff's motion which were for summary judgment dismissing that defendant's affirmative defense of nonpermissive use and to strike that defendant's answer.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On May 15, 2023, the plaintiff allegedly was injured while walking across a street when he was struck by a vehicle operated by the defendant Les Jacobs and owned by the defendant EAN Holdings, LLC (hereinafter EAN).  Earlier that day, EAN, a rental car agency, left the vehicle with the defendant Island Park Car Wash, LLC (hereinafter IPCW), which was owned by Jacobs, to be cleaned.  The plaintiff commenced this action, inter alia, to recover damages for personal injuries against the defendants.  Thereafter, EAN moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it.  The plaintiff moved, inter alia, for summary judgment dismissing EAN's affirmative defense of nonpermissive use and to strike EAN's answer.  In an order dated April 14, 2025, the Supreme Court, among other things, granted that branch of EAN's motion and denied those branches of the plaintiff's motion.  The plaintiff appeals.

Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability under federal law, the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner's express or implied consent (see Rodriguez v. Morales, 217 AD3d 695, 696).  The strong presumption of permissive use afforded by Vehicle and Traffic Law § 388 can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner's consent (see Madrigal v Paragon Motors of Woodside, Inc., 236 AD3d 885, 888;  Matter of Allstate Ins. Co. v. Jae Kan Shim, 185 AD3d 919, 920).

Here, EAN established that it left the vehicle in IPCW's possession for the limited purpose of cleaning it and that the accident happened when Jacobs was using the vehicle in a manner unrelated to that purpose.  Thus, EAN established, prima facie, that Jacobs was operating the vehicle at the time of the accident without its express or implied consent (see Zuckerman v. Parton, 260 NY 446, 449–450;  Matter of Allstate Ins. Co. v. Jae Kan Shim, 185 AD3d at 920;  Padilla v. Felson, 28 AD3d 530, 531).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted that branch of EAN's motion which was for summary judgment dismissing the complaint insofar as asserted against it and denied that branch of the plaintiff's motion which was for summary judgment dismissing EAN's affirmative defense of nonpermissive use.

The plaintiff's remaining contention is without merit.

IANNACCI, J.P., VOUTSINAS, TAYLOR and MCCORMACK, JJ., concur.