CUNNINGHAM v. Sunnyside Cycle Sales, Inc., Defendant-Appellant-Respondent.

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Supreme Court, Appellate Division, Fourth Department, New York.

Mary (Leo) CUNNINGHAM and Michael Leo, as Parents and Natural Guardians of Steven Leo, Plaintiffs-Respondents-Appellants, v. Wesley FORD, John H. Ford, Carrie J. Ford, Defendants-Respondents, Sunnyside Cycle Sales, Inc., Defendant-Appellant-Respondent.

Decided: July 01, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND HAYES, JJ. Walsh & Wilkins, Buffalo (Robert H. Flynn of Counsel), for Defendant-Appellant-Respondent. Dadd and Nelson PLLC, Attica (Howard S. Beyer of Counsel), for Plaintiffs-Respondents-Appellants. Kavinoky Cook LLP, Buffalo (Marilyn A. Hochfield of Counsel), for Defendants-Respondents.

In an action to recover damages for personal injuries, defendant Sunnyside Cycle Sales, Inc. (Sunnyside) appeals from an order that, inter alia, denied its cross motion to dismiss the complaint and all cross claims against it.   Plaintiffs cross-appeal from the same order insofar as it denied their motion, which sought, inter alia, partial summary judgment against Sunnyside on the issue of the ownership of the dirt bike that allegedly caused the injuries.

Supreme Court properly denied the motion and cross motion.   It is settled that “[t]itle to a motor vehicle passes when the parties intend that it pass” (Fulater v. Palmer's Granite Garage, 90 A.D.2d 685, 685, 456 N.Y.S.2d 289, appeal dismissed 58 N.Y.2d 826, citing Bornhurst v. Massachusetts Bonding & Ins. Co., 21 N.Y.2d 581, 289 N.Y.S.2d 937, 237 N.E.2d 201), and that “[g]enerally ownership is in the registered owner of the vehicle or one holding the documents of title but a party may rebut the inference that arises from these circumstances” (id.).   As proponents of the motion for partial summary judgment, plaintiffs met their initial burden of tendering sufficient evidence to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572), by establishing that, when defendants Wesley Ford and John H. Ford took possession of the dirt bike, Sunnyside retained all title documents and those defendants neither paid nor arranged financing for the purchase of the dirt bike.   In response, however, Sunnyside submitted sufficient evidence to raise a triable issue of fact whether it owned the dirt bike (see generally Aronov v. Bruins Transp., 294 A.D.2d 523, 524, 743 N.Y.S.2d 131;   Sosnowski v. Kolovas, 127 A.D.2d 756, 758, 512 N.Y.S.2d 148).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: