Dorizas v. Island Insulation Corp.

254 A.D.2d 246, 678 N.Y.S.2d 388, 1998 N.Y. App. Div. LEXIS 10094

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1998
• Status: Published

Opinions

In an action to recover damages for personal injuries, the defendants Mode Plastics, Inc., and S.O. Textile Co., Inc. a/k/a S.O. Textiles Co., Inc., appeal from (1) an order of the Supreme Court, Kings County (Yoswein, J.), dated May 21, 1996, which, inter alia, granted the plaintiffs motion to vacate a decision of the same court, dated November 17, 1994, (2) a transcript of the same court (Schneier, J.), dated August 7, 1996, and (3) an order of the same court (Schneier, J.), dated March 13, 1998, which, after a hearing, denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the appeal from the order dated May 21, 1996, is dismissed (see, Behrens v Behrens, 143 AD2d 617); and it is further,

Ordered that the appeal from the transcript dated August 7, 1996, is dismissed, as the transcript is not a paper from which an appeal can be taken (see, Ojeda v Metropolitan Playhouse, 120 AD2d 717; CPLR 5512 [a]); and it is further,

Ordered that the order dated March 13, 1998, is reversed, on the facts, the cross motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed; and it is further,

Ordered that the appellants are awarded one bill of costs.

On December 31, 1987, the plaintiff allegedly was struck by a vehicle while walking across a street. She brought the instant action against, among others, the defendants Mode Plastics, Inc., a subsidiary of the appellant S.O. Textile Co., Inc., a/k/a S.O. Textiles Co., Inc. (hereinafter collectively Mode, or the appellants), to recover damages for personal injuries, and alleged, inter alia, that the appellants owned the subject vehicle. The appellants denied that allegation and cross-moved for summary judgment on the ground that they did not own the subject vehicle on the date of the accident.

Ultimately, a hearing was ordered on the issue of whether the appellants owned the subject vehicle on the date of the accident. Following the hearing, the Supreme Court found that Mode did own the vehicle on that date, and denied the appellants’ cross motion for summary judgment. We reverse.

The plaintiff’s evidence at the framed-issue hearing demonstrated that the certificate of title issued by the New York State Department of Motor Vehicles listed Mode as the owner of the subject vehicle. This clearly “constitutes prima facie evidence of [Mode’s] ownership of the vehicle (see, Vehicle and Traffic Law § 2108 [c])” (Sosnowski v Kolovas, 127 AD2d 756, 758). 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” (Sosnowski v Kolovas, supra, at 758; see, Matter of Vergari v Kraisky, 120 AD2d 739; Salisbury v Smith, 115 AD2d 840, 841).

On the back page of the certificate of title for the subject vehicle, in the space provided for the transfer of ownership, it is indicated that Mode transferred ownership of the subject vehicle to the defendant Island Insulation Corp. (hereinafter Island Insulation). Although the space for the date of the transfer was left blank, the appellants presented evidence at the hearing that it had occurred in September 1987.

Kenneth Lorenz, owner of the defendant Kenny’s Fleet Maintenance, Inc., testified that he had performed work on the subject vehicle in 1987. However, Rudy Fritzhand, the president of Mode, refused to pay for the work and asked Lorenz if he could find a buyer for the subject vehicle. Lorenz found John Matthews, the owner of the defendant Island Insulation. Matthews agreed to pay $1,000 for the subject vehicle, $500 of which was to be paid to Lorenz and $500 to Mode. After paying $500 to Lorenz, Matthews went to get the title to the vehicle from Fritzhand. He returned to Lorenz’s shop about an hour later, and Lorenz received a telephone call from Fritzhand. Fritzhand told Lorenz that he had signed the subject vehicle over to Matthews and that Matthews could take it. Matthews then took license plates from another vehicle and placed them on the subject vehicle before driving it away. According to Lorenz, these events occurred at the end of the summer or in September 1987.

While we are mindful of the substantial deference to which the determination of the hearing court is entitled on appeal (see, Evering v Bronx Chrysler Plymouth, 234 AD2d 586; Matter of Kaplan v Werlin, 215 AD2d 387, 388), we find that the court’s determination in the instant case is against the weight of the credible evidence. Lorenz’s uncontradicted testimony established that Mode sold the subject vehicle to Island Insulation in or around September 1987, more than three months prior to the accident.

“Title to a motor vehicle passes when the parties intend that it pass (Bornhurst v Massachusetts Bonding & Ins. Co., 21 NY2d 581)” (Fulater v Palmer’s Granite Garage, 90 AD2d 685). In the instant case, the credible evidence at the evidentiary hearing established that Island Insulation had “possessory interest in the [vehicle], with its attendant characteristics of dominion and control” on the date of the accident, and therefore, the presumption of ownership raised by the certificate of title was rebutted (Matter of Vergari v Kraisky, supra, at 740). O’Brien, J. P., Ritter, Thompson and Friedmann, JJ., concur.