Carter v. Rosa Rosa, Inc.

284 A.D.2d 110, 725 N.Y.S.2d 202, 2001 N.Y. App. Div. LEXIS 5655

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about January 10, 2001, which denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Appellants George Zambrano and his business, Rosa Rosa, Inc., are sued in their capacity as owners of the vehicle which, while operated by defendant George Franco, struck plaintiff’s vehicle, causing various injuries to plaintiff. Although appellants maintain that they never gave Franco permission to use their vehicle, their evidentiary showing in support of that contention was not sufficiently substantial to overcome the strong statutory presumption of permissive use (see, Vehicle and Traffic Law § 388). The testimony in support of appellants’ motion for summary judgment by witnesses, all of whom are closely related and obviously interested in a favorable outcome for defendant Zambrano and his business, was rife with inconsistencies and raises credibility issues inappropriate for resolution on a motion for summary judgment. Concur — Sullivan, P. J., Rosenberger, Ellerin, Wallach and Marlow, JJ.