RODRIGUEZ v. Afghan Food and Paper Products, Inc., et al., respondents. (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), dated September 24, 2020.  The order granted the motion of the defendants Afghan Food and Paper Products, Inc., and Crown Food & Paper Products, Inc., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Afghan Food and Paper Products, Inc., and Crown Food & Paper Products, Inc., for summary judgment dismissing the complaint insofar as asserted against them is denied.

In February 2018, the plaintiff was operating a motor vehicle in Brooklyn when that vehicle was involved in an accident with a box truck owned by the defendants Afghan Food and Paper Products, Inc., and Crown Food & Paper Products, Inc. (hereinafter together the Afghan Food defendants), and operated by the defendant Samwel Williams Morales.  The plaintiff commenced this action against Morales and the Afghan Food defendants, alleging, among other things, that they were negligent in the ownership and operation of the box truck.  After issue was joined, but before discovery was completed, the Afghan Food defendants moved for summary judgment dismissing the complaint insofar as asserted against them, arguing that Morales did not have permission to operate the box truck at the time of the accident.  The Supreme Court granted the motion, and 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 (see 49 USC § 30106;  Vyrtle Trucking Corp. v. Browne, 93 A.D.3d 716, 940 N.Y.S.2d 279;  Castillo v. Amjack Leasing Corp., 84 A.D.3d 1297, 924 N.Y.S.2d 277), 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 Pierrelouis v. Kuten, 207 A.D.3d 485, 169 N.Y.S.3d 530;  Piano Exch. v. Weber, 168 A.D.3d 1017, 1018, 92 N.Y.S.3d 327).  The statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission (see Piano Exch. v. Weber, 168 A.D.3d at 1018, 92 N.Y.S.3d 327;  see also Murdza v. Zimmerman, 99 N.Y.2d 375, 380, 756 N.Y.S.2d 505, 786 N.E.2d 440;  Fuentes v. Virgil, 119 A.D.3d 522, 522–523, 989 N.Y.S.2d 498), which may be rebutted only by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent (see Matter of Allstate Ins. Co. v. Jae Kan Shim, 185 A.D.3d 919, 128 N.Y.S.3d 49;  Matter of Country–Wide Ins. Co. v. Santos, 175 A.D.3d 1530, 109 N.Y.S.3d 446;  Piano Exch. v. Weber, 168 A.D.3d at 1018, 92 N.Y.S.3d 327).  Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use (see Matter of Country–Wide Ins. Co. v. Santos, 175 A.D.3d at 1530, 109 N.Y.S.3d 446;  Piano Exch. v. Weber, 168 A.D.3d at 1018, 92 N.Y.S.3d 327;  Fuentes v. Virgil, 119 A.D.3d at 522–523, 989 N.Y.S.2d 498).  However, the uncontradicted testimony of a vehicle owner or a vehicle owner's employee that a vehicle was operated without the owner's permission does not, by itself, overcome the statutory presumption of permissive use under Vehicle and Traffic Law § 388(1) (see Han v. BJ Laura & Son, Inc., 122 A.D.3d 591, 592–593, 996 N.Y.S.2d 132;  Matter of State Farm Ins. Co. v. Walker–Pinckney, 118 A.D.3d 712, 713, 986 N.Y.S.2d 626;  Vinueza v. Tarar, 100 A.D.3d 742, 744, 954 N.Y.S.2d 160;  Matter of State Farm Mut. Auto. Ins. Co. v. Ellington, 27 A.D.3d 567, 568, 810 N.Y.S.2d 356;  Matter of New York Cent. Mut. Fire Ins. Co. v. Dukes, 14 A.D.3d 704, 789 N.Y.S.2d 267).  The issue of consent is generally a question for the jury (see Marino v. City of New York, 95 A.D.3d 840, 841, 943 N.Y.S.2d 564).  Ultimately, “whether summary judgment is warranted depends on the strength and plausibility of the disavowals [of permission], and whether they leave room for doubts that are best left for the jury” (Country–Wide Ins. Co. v. National R.R. Passenger Corp., 6 N.Y.3d 172, 179, 811 N.Y.S.2d 302, 844 N.E.2d 756;  see Han v. BJ Laura & Son, Inc., 122 A.D.3d at 592, 996 N.Y.S.2d 132).

Here, the Afghan Food defendants failed to sufficiently rebut the presumption that Morales was operating the box truck with their permission on the date of the accident.  The assertion made by the Afghan Food defendants’ manager in his deposition testimony and in an affidavit, both of which were submitted in support of the motion, that Morales did not have permission to drive the box truck did not, by itself, overcome the presumption of permissive use under the facts of this case (see Han v. BJ Laura & Son, Inc., 122 A.D.3d at 593, 996 N.Y.S.2d 132).  In addition, the Afghan Food defendants failed to demonstrate that the box truck was stolen at the time of the accident (see id.;  cf.  Fuentes v. Virgil, 119 A.D.3d at 522, 989 N.Y.S.2d 498).

Since the Afghan Food defendants failed to rebut the presumption of permissive use in support of their motion, and failed to demonstrate that their box truck was stolen at the time of the accident, they failed to establish, prima facie, that they could not be vicariously liable to the plaintiff for Morales's alleged negligence in the happening of the accident under Vehicle and Traffic Law § 388.  Accordingly, the Supreme Court should have denied the Afghan Food defendants’ motion for summary judgment dismissing the complaint insofar as asserted against it, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

DUFFY, J.P., GENOVESI, DOWLING and TAYLOR, JJ., concur.