Exchange Insurance v. Pond

Appellate Division of the Supreme Court of New York

Exchange Insurance v. Pond

178 A.D.2d 808, 577 N.Y.S.2d 529, 1991 N.Y. App. Div. LEXIS 16602

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 26, 1991

StatusPublished

This text of 178 A.D.2d 808 (Exchange Insurance v. Pond) 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

Exchange Insurance v. Pond, 178 A.D.2d 808, 577 N.Y.S.2d 529, 1991 N.Y. App. Div. LEXIS 16602 (N.Y. Ct. App. 1991).

Pincite

Opinion

Casey, J. P.

Appeal from an order of the Supreme Court (Dier, J.), entered January 28, 1991 in Warren County, which denied plaintiff’s motion for summary judgment.

Plaintiff seeks a declaratory judgment on the issue of defendant Robert M. Pond’s permission to use a truck owned by plaintiff’s insured which was involved in a collision with a bicycle being ridden by an infant, defendant Scott M. Genier. At the time of the accident, the truck was being used for the purposes of the insured’s trash-hauling business. According to the examinations before trial of Pond and the insured, Pond was employed by the insured as a helper whose job was to assist in loading trash onto the vehicle. Further, Pond did not have permission to drive any of the insured’s vehicles, including the one involved in the collision with the bicycle. Defendants contend that this undisputed evidence is sufficient to rebut the presumption of permission contained in Vehicle and Traffic Law § 388 (1), but we agree with plaintiff that because the facts are exclusively within the knowledge of plaintiff’s [809]*809insured and the insured’s employee, plaintiffs version of the relevant events should be subjected to cross-examination at trial (see, Chang v Fernandez, 170 AD2d 936).

Mikoll, Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, with one bill of costs to respondents filing briefs.

Free access — add to your briefcase to read the full text and ask questions with AI

Casey, J. P.

Appeal from an order of the Supreme Court (Dier, J.), entered January 28, 1991 in Warren County, which denied plaintiff’s motion for summary judgment.

Plaintiff seeks a declaratory judgment on the issue of defendant Robert M. Pond’s permission to use a truck owned by plaintiff’s insured which was involved in a collision with a bicycle being ridden by an infant, defendant Scott M. Genier. At the time of the accident, the truck was being used for the purposes of the insured’s trash-hauling business. According to the examinations before trial of Pond and the insured, Pond was employed by the insured as a helper whose job was to assist in loading trash onto the vehicle. Further, Pond did not have permission to drive any of the insured’s vehicles, including the one involved in the collision with the bicycle. Defendants contend that this undisputed evidence is sufficient to rebut the presumption of permission contained in Vehicle and Traffic Law § 388 (1), but we agree with plaintiff that because the facts are exclusively within the knowledge of plaintiff’s [809]*809insured and the insured’s employee, plaintiffs version of the relevant events should be subjected to cross-examination at trial (see, Chang v Fernandez, 170 AD2d 936).

Mikoll, Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the order is affirmed, with one bill of costs to respondents filing briefs.

Cite This Page — Counsel Stack

Bluebook (online)

178 A.D.2d 808, 577 N.Y.S.2d 529, 1991 N.Y. App. Div. LEXIS 16602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exchange-insurance-v-pond-nyappdiv-1991.

Opinion

Related

Cite This Page — Counsel Stack