ARONOV v. ABC

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

Michael ARONOV, etc., et al., Plaintiffs-Respondents, v. BRUINS TRANSPORTATION, INC., et al., Defendants, Firstar Bank, N.A., etc., et al., Appellants, ABC Bus Leasing, Inc., etc., et al., Defendants-Respondents.

Decided: May 28, 2002

A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, SONDRA MILLER and STEPHEN G. CRANE, JJ. Quirk and Bakalor, P.C., New York, N.Y. (Richard H. Bakalor and A. Lorenzo Bryan of counsel), for appellants. Kreindler & Kreindler, New York, N.Y. (Noah H. Kushlefsky of counsel), for plaintiffs-respondents. Herzfeld & Rubin, P.C., New York, N.Y. (Herbert Rubin, David B. Hamm, and Bowman & Brooke, LLP, Minneapolis, MN, of counsel) for defendants-respondents.

In a consolidated action to recover damages for personal injuries and wrongful death, the defendants Firstar Bank, N.A., s/h/a Firstar Equipment Finance Corp., f/k/a Cargill Leasing Corp., a subsidiary of Firstar Corporation, Cargill Leasing Vehicle Trust, and Firstar Corporation appeal from so much of (1) an order of the Supreme Court, Kings County (Huttner, J.), dated January 4, 2001, as denied those branches of their motion which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and for indemnity and/or contribution against the defendants ABC Bus Leasing, Inc., d/b/a ABC Financial Services, Inc., ABC Bus Companies, Inc., and ABC Bus, Inc., and (2) an order of the same court dated January 11, 2001, as granted the motion of the defendants ABC Bus Leasing, Inc., d/b/a ABC Financial Services, Inc., ABC Bus Companies, Inc., and ABC Bus, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order dated January 4, 2001, is affirmed insofar as appealed from, without costs or disbursements;  and it is further,

ORDERED that the order dated January 11, 2001, is reversed insofar as appealed from, without costs or disbursements, and the motion of the defendants ABC Bus Leasing, Inc., d/b/a ABC Financial Services, Inc., ABC Bus Companies, Inc., and ABC Bus, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is denied.

On December 24, 1998, a bus en route from Brooklyn to Atlantic City, New Jersey, with 22 passengers on board spun out of control on the Garden State Parkway, causing the death of eight passengers and injury to the other 14 passengers and the driver.   The plaintiffs allege that the bus was owned by the defendants ABC Bus Leasing, Inc., d/b/a Financial Services, Inc., ABC Bus Companies, Inc., and ABC Bus, Inc. (hereinafter collectively referred to as ABC), and the defendants Firstar Bank, N.A., s/h/a Firstar Equipment Finance Corp., f/k/a Cargill Leasing Corp., a subsidiary of Firstar Corporation, Cargill Leasing Vehicle Trust, and Firstar Corporation (hereinafter collectively referred to as Firstar).   Both Firstar and ABC moved for summary judgment dismissing the complaint insofar as asserted against them, each contending that they were not the owner of the vehicle at the time of the accident.   The Supreme Court denied Firstar's motion and granted ABC's motion.

 The certificate of title issued by the New York State Department of Motor Vehicles, which listed Firstar as the owner of the bus at the time of the accident, constitutes prima facie evidence of Firstar's ownership (see Vehicle and Traffic Law § 2108[c];  Sosnowski v. Kolovas, 127 A.D.2d 756, 512 N.Y.S.2d 148).   However, “[t]his presumption of ownership is not conclusive, and may be rebutted by evidence which demonstrates that another individual owned the vehicle in question” (Dorizas v. Island Insulation Corp., 254 A.D.2d 246, 247, 678 N.Y.S.2d 388;  Sosnowski v. Kolovas, supra at 758, 512 N.Y.S.2d 148).

 Here, there is evidence, including a lease of the bus from ABC to the defendant Bruins Transportation, Inc., for the period of December 9, 1998, through January 4, 1999, which raises a triable issue of fact as to whether the bus was owned by Firstar or ABC at the time of the accident (see Sosnowski v. Kolovas, supra).   Accordingly, the Supreme Court properly denied Firstar's motion for summary judgment and improperly granted ABC's motion for summary judgment.

Firstar's remaining contentions are without merit.

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