JOHARI v. PATEL (2021)

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by the defendant Shrinath Patel (hereinafter Patel or the movant) on December 15, 2020 under motion sequence number four, for an order pursuant to CPLR 3212 granting summary judgment in Patel's favor on the issue of liability and dismissing the complaint of Khalil Johari (hereinafter Johari or the plaintiff).

Notice of Motion

Affirmation in Support

Exhibits A-F

Affirmation in Opposition by the Plaintiff

Affirmation in Opposition by Car2Go and Defendant Mohammed Oday Al Ghanimi (Hereinafter Ghanimi)

Affirmation in Reply to The Plaintiff's Opposition

Affirmation in Reply to Car2Go And Ghanimi's Opposition

BACKGROUND

On September 26, 2019, plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office. By a joint verified answer with cross claim filed on December 5, 2019, Car2Go and Ghanimi joined issue. By verified answer filed on February 6, 2020, defendant Patel joined issue.

The verified complaint alleges the following salient facts. On July 1, 2019, plaintiff was a passenger in a 2017 Smart Toyota motor vehicle bearing State of New York license plate number HMK2091 (hereinafter the Smart vehicle). The Smart vehicle was being operated by Ghanimi with the consent of his employer and the vehicle's owner Car2Go. Ghanimi was operating the Smart vehicle on 4th Avenue at or near its intersection with 95th Street, County of Kings, City and State of New York.

On the same date and time, defendant Mahnoor Naseer (hereinafter Naseer) was operating a 2018 Audi motor vehicle bearing State of South Carolina license plate number QUJ485 with the consent of its owner, Patel. Naseer was also operating the Audi on 4th Avenue at or near its intersection with 95th Street, County of Kings, City and State of New York. Due to Ghanimi and Naseer's negligent operation of their respective vehicles, the two vehicles came into contact (hereinafter the accident). The contact caused the plaintiff to sustain serious physical injuries.

LAW AND APPLICATION

Plaintiff's complaint has plead, inter alia, a cause of action against Patel for vicarious liability pursuant to Vehicle and Traffic Law § 388 (1) premised on the alleged negligence of Naseer in causing the accident while driving Patel's vehicle. Patel, the owner of the Audi vehicle involved in the accident, seeks an order dismissing the complaint as asserted against him on the basis that Naseer was driving his vehicle without his permission and consent.

Vehicle and Traffic Law § 388 (1) reads as follows:

“Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.”

Vehicle and Traffic Law § 388 imputes to the owner of a car the negligence of any person who uses or operates it with the owner's permission. This section gives rise to a presumption that the vehicle is being operated with the owner's consent (Sargeant v Vill. Bindery, Inc., 296 AD2d 395, 396 [2nd Dept 2002]). However, this presumption may be rebutted by substantial evidence to the contrary (id.).

In support of the motion, Patel offered two affidavits, a police accident report and a letter. His own affidavit averred that he was out of State and that he did not know and did not give permission to the driver of his vehicle at the time of the accident. The affidavit of Chandi Patel (hereinafter Chandi P.) averred that Patel gave her permission to drive the Audi vehicle, that the vehicle was involved in an earlier unrelated accident which caused some damage and the need for some repair, that she gave an individual named Samuel permission to take the vehicle to a body shop, and that she was out of State when the July 1, 2019 accident occurred.

Patel's affidavit did not mention that he had given Chandi P. permission to operate the vehicle prior to the accident. Chandi P.’s affidavit was ambiguous and confusing. The police report submitted by Patel was uncertified. Where, as here, the police report has not been certified, and a foundation for its admissibility has not been laid by some other method, the report and its contents constitute inadmissible hearsay (Yassin v Blackman, 188 AD3d 62, 66 [2nd Dept 2020]). The letter proffered by Patel was unsworn, and as such, inadmissible and disregarded (Abrahamsen v Brockway Glass Co., 156 AD2d 615, 617 [2nd Dept 1989]).

In totality, the movant did not provide substantial evidence sufficient to rebut the presumption of permissive use set forth in Vehicle and Traffic Law § 388 (1). The motion is therefore denied without regard to the sufficiency of the opponent's opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

CONCLUSION

The motion by defendant Shrinath Patel for an order pursuant to CPLR 3212 granting summary judgment in Shrinath Patel's favor on the issue of liability and dismissing the complaint is denied.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.