GRINBERG v. VISTAS OF PORT JEFFERSON LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Vistas of Port Jefferson, LLC, and Arlen Contracting of PJ, LLC, appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated July 23, 2025.  The order, insofar as appealed from, denied those defendants' motion for summary judgment dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Vistas of Port Jefferson, LLC, and Arlen Contracting of PJ, LLC, for summary judgment dismissing the amended complaint insofar as asserted against them is granted.

In April 2020, the plaintiff allegedly was injured when a John Deere utility vehicle (hereinafter the utility vehicle) backed into him while he was standing in the paved area of a gas station.  The plaintiff commenced this action to recover damages for personal injuries against, among others, the defendants Vistas of Port Jefferson, LLC (hereinafter Vistas), and Arlen Contracting of PJ, LLC (hereinafter together the defendants), alleging, inter alia, that the defendants were negligent in the ownership, management, and control of the utility vehicle.  In January 2025, the defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them, arguing, among other things, that the utility vehicle had been stolen from Vistas' property the night before the incident.  In an order dated July 23, 2025, the Supreme Court, inter alia, denied the defendants' motion.  The defendants appeal.

Vehicle and Traffic Law § 388(1) makes every owner of a vehicle liable for injuries resulting from negligence “in the use or operation of such vehicle ․ by any person using or operating the [vehicle] with the permission, express or implied, of such owner,” with exceptions not relevant here.  Proof of ownership “creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied” (Murdza v. Zimmerman, 99 N.Y.2d 375, 380 [internal quotation marks omitted];  see Piano Exch. v. Weber, 168 AD3d 1017, 1018).  The presumption may be rebutted “by substantial evidence sufficient to show that a vehicle was not operated with the owner's consent” (Murdza v. Zimmerman, 99 N.Y.2d at 380).  “Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use” (Piano Exch. v. Weber, 168 AD3d at 1018;  see Fuentes v. Virgil, 119 AD3d 522, 523).

Further, Vehicle and Traffic Law § 1210(a), entitled “Unattended motor vehicle,” provides, in pertinent part:  “No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon ․ provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency.”  “[A] motorist need only ensure that the ignition key is hidden from sight and need not additionally conceal it so that the key is not readily discoverable by a prospective car thief without extreme difficulty” (Banellis v. Yackel, 49 N.Y.2d 882, 884 [internal quotation marks omitted];  see Manning v. Brown, 91 N.Y.2d 116, 122).

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against them by submitting substantial evidence sufficient to show that the utility vehicle was stolen at the time of the incident and was not being operated with the defendants' consent (see Naranjo v. City of New York, 246 AD3d 1101, 1103;  Piano Exch. v. Weber, 168 AD3d at 1018).  Additionally, the defendants established, prima facie, that the ignition key was in the utility vehicle's glove compartment and hidden from view in compliance with Vehicle and Traffic Law § 1210(a) (see Piano Exch. v. Weber, 168 AD3d at 1018;  Poss v. Feringa, 241 A.D.2d 877, 878).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

The parties' remaining contentions are either improperly raised for the first time on appeal, without merit, or academic in light of our determination.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the amended complaint insofar as asserted against them.

DUFFY, J.P., WARHIT, VENTURA and OTTLEY, JJ., concur.