MARSHALL v. Freddie Lee Brock, Defendant-Respondent.

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

D.F., by her Parent and Natural Guardian Heidi MARSHALL, and Heidi Marshall Individually, Plaintiffs-Respondents-Appellants, v. WEDGE MASCOT CORPORATION, Doing Business as South Wedge Car Company, Defendant-Appellant-Respondent, Freddie Lee Brock, Defendant-Respondent.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, GORSKI, CENTRA, AND GREEN, JJ. Hiscock & Barclay, LLP, Rochester (Robert M. Shaddock of Counsel), for Defendant-Appellant-Respondent. Mark C. Donadio, Canandaigua, for Plaintiffs-Respondents-Appellants. Martin & Iati LLP, Rochester (Jennifer D. Richardson of Counsel), for Defendant-Respondent.

Plaintiff commenced this action to recover damages for injuries sustained by her daughter (hereafter, plaintiff) when a motor vehicle operated by defendant Freddie Lee Brock, III struck her while she was crossing the street.   The record establishes that Brock purchased the vehicle from defendant Wedge Mascot Corporation, doing business as South Wedge Car Company (Wedge), several months before the accident.

 Supreme Court properly denied the motion of Wedge seeking summary judgment dismissing the amended complaint against it but erred in denying plaintiffs' cross motion seeking partial summary judgment on liability against Wedge as the owner of the vehicle.  “Under New York law, a dealer who fails to comply with the statutory requirements regarding vehicle registration procedures, including the failure to verify insurance, is estopped from denying ownership of the vehicle and is fully liable to the plaintiff as if it were the ‘owner’ of the vehicle” (Brown v. Harper, 231 A.D.2d 483, 484, 647 N.Y.S.2d 245;  see Taylor v. Botnick Motor Corp., 146 A.D.2d 81, 84-85, 539 N.Y.S.2d 141).   Plaintiffs established that the license plates affixed by Brock to the vehicle when he purchased it from Wedge were removed from a vehicle that was neither registered to Brock nor insured in his name and, in any event, the insurance on that vehicle, issued to another individual, had lapsed.   Plaintiffs also established that Wedge issued a temporary registration to Brock without making any effort to ascertain whether the license plates were removed from a vehicle that “was duly registered, meaning that [Brock] could produce a valid registration and insurance card” (Allbright v. National Grange Mut. Ins. Co., 99 A.D.2d 651, 472 N.Y.S.2d 60).   Wedge failed to raise a triable issue of fact on the issue whether it may be vicariously liable to plaintiffs as the owner of the vehicle pursuant to Vehicle and Traffic Law § 388(1) based on Brock's alleged negligence.   We therefore modify the order accordingly.

 The court properly denied plaintiffs' motion seeking partial summary judgment against Brock on the issue of negligence.   Plaintiffs' own submissions raise triable issues of fact whether plaintiff was comparatively negligent and whether Brock exercised due care to avoid striking her (see Dragunova v. Dondero, 305 A.D.2d 449, 758 N.Y.S.2d 819;  Garner v. Fox, 265 A.D.2d 525, 696 N.Y.S.2d 868;  see also Mandelovitz v. Rockofsky, 279 A.D.2d 557, 719 N.Y.S.2d 672).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion and as modified the order is affirmed without costs.