IN RE: STATE FARM FIRE & CASUALTY COMPANY

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

IN RE: STATE FARM FIRE & CASUALTY COMPANY, petitioner-respondent, v. John HAYES, appellant, Leslie B. Hodelin, et al., respondents-respondents.

Decided: November 23, 2010

PETER B. SKELOS, J.P., RUTH C. BALKIN, RANDALL T. ENG, and LEONARD B. AUSTIN, JJ. Gellman & Mandell, Lynbrook, N.Y. (Irving Mandell of counsel), for appellant. Gail S. Lauzon (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S. Neumann, Jr.], of counsel), for respondents-respondents.

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the appeal, as limited by the appellant's brief, is from so much of a judgment of the Supreme Court, Kings County (Kurtz, Ct.Atty.Ref.), dated November 18, 2009, as, after a hearing, determined that the subject vehicle was stolen and being operated without permission at the time of the accident and, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

 “The strong presumption of permissive use afforded by Vehicle and Traffic Law § 388, can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle was not operating the vehicle with the owner's consent” (Matter of State Farm Mut. Auto. Ins. Co. v. Ellington, 27 A.D.3d 567, 568, 810 N.Y.S.2d 356;  see Murdza v. Zimmerman, 99 N.Y.2d 375, 378, 756 N.Y.S.2d 505, 786 N.E.2d 440;  Matter of New York Cent. Mut. Fire Ins. Co. v. Dukes, 14 A.D.3d 704, 789 N.Y.S.2d 267).  “The determination of the fact-finding court should not be disturbed on appeal unless its conclusions could not be reached on any fair interpretation of the evidence, especially where, as here, the determination turns largely upon the credibility” of witnesses (Matter of New York Cent. Mut. Fire Ins. Co. v. Accardo, 298 A.D.2d 459, 459, 748 N.Y.S.2d 270;  see Sargeant v. Village Bindery, 296 A.D.2d 395, 396, 744 N.Y.S.2d 508;  Matter of CGU Ins. Co. v. Velez, 287 A.D.2d 624, 731 N.Y.S.2d 853).

 Here, the Supreme Court's resolution of the issues of the vehicle owner's credibility, and the weight to be given the evidence, is supported by the record and will not be disturbed on appeal (see Amex Assur. Co. v. Kulka, 67 A.D.3d 614, 615, 888 N.Y.S.2d 577;  McDonald v. Rose, 37 A.D.3d 781, 783, 830 N.Y.S.2d 765;  Matter of Allstate Indem. Co. v. Nelson, 285 A.D.2d 545, 728 N.Y.S.2d 82).   Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding, finding that the presumption of permissive use was overcome (see Matter of New York Cent. Mut. Fire Ins. Co. v. Accardo, 298 A.D.2d at 459, 748 N.Y.S.2d 270;  Matter of Allstate Indem. Co. v. Nelson, 285 A.D.2d at 545, 728 N.Y.S.2d 82;  Headley v. Tessler, 267 A.D.2d 428, 428–429, 700 N.Y.S.2d 849).

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