Lewis v. Caldwell

Appellate Division of the Supreme Court of New York

Lewis v. Caldwell

236 A.D.2d 896, 653 N.Y.S.2d 745, 1997 N.Y. App. Div. LEXIS 1944

Appellate Division of the Supreme Court of the State of New York·Decided February 7, 1997·Published·Cited by 4 cases

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of defendant for summary judgment dismissing the complaint on the ground that the operator of the vehicle owned by defendant was not driving the vehicle with defendant’s permission. "It is well settled that Vehicle and Traffic Law § 388 (1) 'creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary’ ” (Leonard v Karlewicz, 215 AD2d 973, 974, quoting Greater N. Y. Mut. Ins. Co. v Clark, 205 AD2d 857, 858, lv denied 84 NY2d 807). The denial by defendant that she gave permission to the operator, without more, does not change the status of the issue from one of fact [897]*897to one of law (see, Blunt v Zinni, 32 AD2d 882, 883, affd 27 NY2d 521). (Appeal from Order of Supreme Court, Erie County, Notaro, J.—Summary Judgment.) Present—Green, J. P., Law-ton, Doerr, Balio and Fallon, JJ.

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—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of defendant for summary judgment dismissing the complaint on the ground that the operator of the vehicle owned by defendant was not driving the vehicle with defendant’s permission. "It is well settled that Vehicle and Traffic Law § 388 (1) 'creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary’ ” (Leonard v Karlewicz, 215 AD2d 973, 974, quoting Greater N. Y. Mut. Ins. Co. v Clark, 205 AD2d 857, 858, lv denied 84 NY2d 807). The denial by defendant that she gave permission to the operator, without more, does not change the status of the issue from one of fact [897]*897to one of law (see, Blunt v Zinni, 32 AD2d 882, 883, affd 27 NY2d 521). (Appeal from Order of Supreme Court, Erie County, Notaro, J.—Summary Judgment.) Present—Green, J. P., Law-ton, Doerr, Balio and Fallon, JJ.

Lewis v. Caldwell, 236 A.D.2d 896, 653 N.Y.S.2d 745, 1997 N.Y. App. Div. LEXIS 1944 (N.Y. Ct. App. 1997).

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Opinion

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