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

Robert M. HOADLEY, Plaintiff-Appellant, v. BANC ONE ACCEPTANCE CORPORATION, Defendant-Respondent, et al., Defendants.

Decided: March 18, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, SMITH, AND HAYES, JJ. Michaels & Smolak, P.C., Auburn (Michael G. Bersani of Counsel), for Plaintiff-Appellant. Mackenzie Hughes, LLP, New York (David M. Garber of Counsel), Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains, for Defendant-Respondent.

Plaintiff commenced this action seeking damages for injuries he sustained while a passenger in a vehicle operated by defendant Gary M. Clark.   The vehicle was leased to defendants Thomas C. Blair and Bonnie J. Blair by Fox Imports, Inc., doing business as Fox Toyota Subaru (Fox), and Fox had assigned the lease to defendant Banc One Acceptance Corporation (Banc One).   Plaintiff moved for partial summary judgment seeking a determination that Banc One is an owner of the vehicle within the meaning of Vehicle and Traffic Law § 388, and Banc One cross-moved for summary judgment dismissing the complaint against it on the ground that it is not an owner within the meaning of that section.

We conclude that Supreme Court erred in denying plaintiff's motion and in granting Banc One's cross motion.   We agree with plaintiff that Banc One is an owner of the vehicle within the meaning of Vehicle and Traffic Law § 388(1) (see Alexander v. Radix, 12 A.D.3d 544, 545, 785 N.Y.S.2d 94;  Litvak v. Fabi, 8 A.D.3d 631, 632, 780 N.Y.S.2d 155;  Ryan v. Sobolevsky, 4 A.D.3d 222, 223, 772 N.Y.S.2d 310, lv. dismissed 3 N.Y.3d 656, 782 N.Y.S.2d 695, 816 N.E.2d 568;  see also Hassan v. Montuori, 99 N.Y.2d 348, 353, 756 N.Y.S.2d 126, 786 N.E.2d 25).   Contrary to Banc One's contention, the agreement between the Blairs and Banc One was a lease agreement and not simply a security agreement (see Litvak, 8 A.D.3d at 632, 780 N.Y.S.2d 155;  Ryan, 4 A.D.3d at 223, 772 N.Y.S.2d 310).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the cross motion is denied, the complaint against defendant Banc One Acceptance Corporation is reinstated and the motion is granted.


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