ADAMSON v. Michael Harvey, Appellant.

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

Itzel ADAMSON, Respondent, v. Ronnie EVANS, et al., Defendants, Michael Harvey, Appellant.

Decided: May 21, 2001

FRED T. SANTUCCI, J.P., SONDRA MILLER, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN and THOMAS A. ADAMS, JJ. Diamond, Paino, Cardo, King, Peters & Fodera, Brooklyn, N.Y. (Deborah F. Peters of counsel), for appellant. Michael D. Hess, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Mordecai Newman of counsel), for defendants City of New York and New York City Police Department.

In an action to recover damages for personal injuries, the defendant Michael Harvey appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated April 17, 2000, as denied his motion for summary judgment dismissing the first cause of action insofar as asserted against him, and granted, without opposition, that branch of the plaintiff's cross motion which was for leave to amend the complaint to name him as a defendant in lieu of John Doe in the second cause of action.

ORDERED that the appeal from so much of the order as granted that branch of the plaintiff's cross motion which was for leave to amend the complaint is dismissed, without costs or disbursements, as no appeal lies from an order entered upon the default of the appealing party (see, CPLR 5511);  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law and the facts, without costs or disbursements, the motion is granted, and the first cause of action is dismissed insofar as it is asserted against the appellant.

 The appellant did not oppose the plaintiff's cross motion, inter alia, for leave to amend the complaint.   No appeal lies from an order entered upon the default of the appealing party (see, Anil v. Fernandez, 267 A.D.2d 187, 699 N.Y.S.2d 300;  Ciaccio v. Germin, 138 A.D.2d 664, 665, 526 N.Y.S.2d 480).

 The Supreme Court erred in denying the appellant's motion for summary judgment on the issue of whether he was vicariously liable for the negligence of the driver who was operating his motor vehicle without his permission.   The appellant, as the owner of the motor vehicle involved in the subject accident, established through an affidavit and documentary evidence that the motor vehicle in question was stolen at the time of the accident.   Thus, the appellant rebutted by substantial evidence the presumption that the motor vehicle was being operated with his consent (see, Vehicle and Traffic Law § 388[1];  Leotta v. Plessinger, 8 N.Y.2d 449, 209 N.Y.S.2d 304, 171 N.E.2d 454;  Naidu v. Harwin, 281 A.D.2d 525, 721 N.Y.S.2d 826 [2d Dept. 2001];   Headley v. Tessler, 267 A.D.2d 428, 700 N.Y.S.2d 849;  Guerra v. Kings Plaza Leasing Corp., 172 A.D.2d 583, 568 N.Y.S.2d 413).

The defendants City of New York and New York City Police Department (hereinafter the defendants), as the parties opposing the motion, then had to come forward with proof, in admissible form, sufficient to demonstrate the existence of a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Molina v. NYRAC, Inc., 228 A.D.2d 655, 656, 645 N.Y.S.2d 819;  Guerra v. Kings Plaza Leasing Corp., supra).   The defendants failed to show the existence of evidence to support their claim that the appellant had violated Vehicle and Traffic Law § 1210(a).   The affirmation of the defendants' attorney was insufficient to defeat the appellant's motion for summary judgment (see, Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776;  Molina v. NYRAC, Inc., supra;  Guerra v. Kings Plaza Leasing Corp., supra).

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