Bernard v. Mumuni

22 A.D.3d 186, 802 N.Y.S.2d 1
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 18, 2005
StatusPublished
Cited by17 cases

This text of 22 A.D.3d 186 (Bernard v. Mumuni) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard v. Mumuni, 22 A.D.3d 186, 802 N.Y.S.2d 1 (N.Y. Ct. App. 2005).

Opinions

OPINION OF THE COURT

Friedman, J.

Plaintiff was injured in an accident involving a minivan owned by defendant Musah Mumuni. Prior to the accident, Mumuni had entrusted the minivan to his friend Osmanu Allhassan; at the time of the accident, the vehicle was being driven by Osmanu Allhassan’s son, defendant Saday Allhassan, who did not hold a valid driver’s license. As more fully discussed below, prior decisions that have applied Vehicle and Traffic Law § 388 in similar situations establish that the evidence in this case raises an issue of fact as to whether Saday Allhassan operated the minivan with Mumuni’s implied consent. Accordingly, Mumuni’s motion for summary judgment was properly denied.

Given his undisputed ownership of the vehicle, Mumuni is required to come forward with substantial evidence to rebut the strong presumption that Saday Allhassan drove the minivan with Mumuni’s consent (see Murdza v Zimmerman, 99 NY2d 375, 380 [2003]). While there may be some uncertainty in the law as to whether the presumption of the owner’s consent, by itself, suffices to raise an issue of fact as to consent where the owner’s evidence rebutting the presumption is uncontradicted (see Country Wide Ins. Co. v National R.R. Passenger Corp., 407 F3d 84 [2d Cir 2005] [certifying questions to the New York Court of Appeals]; Country Wide Ins. Co. v National R.R. Passenger Corp., 5 NY3d 728 [2005] [accepting such certified questions]), that issue need not detain us here. In this case, the record contains evidence from which a trier of fact could reasonably infer that Saday Allhassan had Mumuni’s implied consent to drive the minivan.

To begin, there is a stark disagreement between Mumuni and Osmanu Allhassan as to the directions, if any, Mumuni gave Os[188]*188manu Allhassan about the use of the minivan upon entrusting it to him. Mumuni has testified that he specifically instructed Osmanu Allhassan not to drive the vehicle while it was entrusted to him. Osmanu Allhassan, however, has stated under oath: “Mr. Mumuni never advised me not to operate the subject vehicle. He gave me no instructions with respect to the use thereof.” Plainly, Osmanu Allhassan’s testimony that Mumuni entrusted the minivan to him without imposing any restrictions on its use raises an issue of fact as to whether Mumuni gave his implied consent to Osmanu Allhassan’s operation of the minivan (see Tabares v Colin Serv. Sys., Inc., 197 AD2d 571, 572 [1993] [issue of fact as to permissive use arose from conflicting testimony concerning what restrictions, if any, employer placed on employee’s use of a company vehicle]). True, Mumuni may argue at trial that his purpose in entrusting the minivan to Osmanu Allhassan (to allow the vehicle to be transferred to a new owner while he was out of the country) weighs against a finding of implied consent. That purpose, however, cannot be said to negate implied consent as a matter of law.

Of course, in order to prevail against Mumuni, plaintiff must prove not only that Mumuni implicitly consented to Osmanu Allhassan’s use of the minivan, but also that such implicit consent extended to Saday Allhassan. The record contains sufficient evidence to support such a finding. In the event the trier of fact credits Osmanu Allhassan’s testimony that Mumuni did not impose any restrictions on use of the minivan during the entrustment, Mumuni’s implied consent to use of the vehicle could reasonably be found to extend to any person Osmanu All-hassan permitted to drive the minivan, either expressly or impliedly. It is well established that, when the owner of a vehicle places it under the unrestricted control of a second person, the owner’s consent to use of the vehicle may reasonably be found to extend to a third person whom the second person permits to drive it (see May v Heiney, 12 NY2d 683 [1962]; Jackson v Brown & Kleinhenz, Inc., 273 NY 365, 369 [1937]; Tabares v Colin Serv. Sys., 197 AD2d 571, supra; Schrader v Carney, 180 AD2d 200, 210 [1992]; Lovetere v Stackhouse, 25 AD2d 628 [1966]; Comstock v Beeman, 24 AD2d 931 [1965], affd 18 NY2d 772 [1966]; Brindley v Krizsan, 18 AD2d 971 [1963], affd 13 NY2d 976 [1963]; Clarke v Mason Au & Magenheimer Confectionery Mfg. Co., 240 App Div 1001 [1933], affd 264 NY 661 [1934]). As the Court of Appeals stated in one of the cases cited above: “[The owner,] having thus relinquished its immedi[189]*189ate control over the automobile and having vested the control in another [Brown & Kleinhenz, Inc.] without limitation of authority, must not now be heard to question the finding that the consent given by Brown & Kleinhenz, Inc., to [the driver] was impliedly its [the owner’s] consent” (Jackson v Brown & Kleinhenz, Inc., 273 NY at 369).

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Bluebook (online)
22 A.D.3d 186, 802 N.Y.S.2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-mumuni-nyappdiv-2005.