Reset A A Font size: Print

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

MASTER CARS, INC., d/b/a Americar Rental System, Appellant, v. Leland C. YOUNG, Jr., Respondent.

Decided: December 31, 1998

Present:  PINE, J.P., HAYES, WISNER, PIGOTT, Jr., and BOEHM, JJ. Primo, Promo, Centra by Terry J. Kirwan, Jr., Liverpool, for Plaintiff-Appellant. Gardner & Milles, L.L.P. by Gary Miles, Gouverneur, for Defendant-Respondent.

Supreme Court properly denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.   Defendant was involved in a two-car accident in which the vehicle that he had rented from plaintiff was totaled.   Following the accident, defendant received a ticket for failure to keep to the right.   Plaintiff commenced this action seeking damages for the replacement cost of the vehicle, towing expenses and lost rental fees.   One who rents an automobile is not liable to the rental company for damages to the rental vehicle, including damages for loss of use, unless the damage or loss is “caused intentionally by an authorized driver or is caused by such authorized driver's willful and wanton misconduct”, or if the damage was caused by the authorized driver while engaged in criminal conduct (General Business Law § 396-z [2][a], [e] ).   Defendant met his burden of establishing his entitlement to judgment as a matter of law.   In his supporting affidavit, he stated that, when he saw the approaching vehicle, he instinctively turned the wheel to the left instead of the right because he was accustomed to driving on the left side of the road in Indonesia, where he had lived for the past two years.   Defendant established that he did not engage in reckless, willful or wanton misconduct (see, Vehicle and Traffic Law § 1212;  People v. Grogan, 260 N.Y. 138, 144, 183 N.E. 273) and that he did not intentionally damage the vehicle.   In opposition, plaintiff failed to raise a triable issue of fact whether defendant was aware of the risk that his conduct would result in the collision.   Plaintiff submitted an affidavit of a person without personal knowledge of the automobile accident, and an unauthenticated police report that is not evidence in admissible form (see, Szymanski v. Robinson, 234 A.D.2d 992, 651 N.Y.S.2d 826).

Order unanimously affirmed with costs.