Lisogorsky v. Raoufi

Appellate Division of the Supreme Court of New York

Lisogorsky v. Raoufi

227 A.D.2d 386, 642 N.Y.S.2d 70, 1996 N.Y. App. Div. LEXIS 4943

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

DecidedMay 6, 1996

StatusPublished

Cited by1 cases

This text of 227 A.D.2d 386 (Lisogorsky v. Raoufi) 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

Lisogorsky v. Raoufi, 227 A.D.2d 386, 642 N.Y.S.2d 70, 1996 N.Y. App. Div. LEXIS 4943 (N.Y. Ct. App. 1996).

Pincite

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Yoswein, J.), entered March 15, 1995, which granted the motion of the defendant Walsh Messenger Service, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

[387]*387The defendant Abdul Raoufi (hereinafter Raoufi) is an independent contractor who delivered packages for the defendant Walsh Messenger Service, Inc. (hereinafter Walsh), in a vehicle which was owned by Raoufi and leased to Walsh under a written lease agreement. The plaintiff was injured when he was struck by this vehicle as he was crossing a street in Manhattan.

The plaintiff contends, inter alia, that Walsh, as lessee of the vehicle, is vicariously liable for Raoufi’s negligence pursuant to Vehicle and Traffic Law § 388. However, as the Supreme Court properly determined, Vehicle and Traffic Law § 388 only imposes vicarious liability upon a vehicle owner. A lessee of a vehicle is only considered an owner when the "lessee * * * [has] exclusive use [of the vehicle], under a lease * * * for a period greater than thirty days” (Vehicle and Traffic Law § 128). It is clear from the record that Walsh did not have exclusive use of the vehicle since Raoufi also utilized it for his own personal affairs. It is undisputed that the accident occurred on a day when Raoufi was driving the vehicle to attend to a personal matter and not in furtherance of Walsh’s business. Accordingly, the Supreme Court properly granted the motion of Walsh for summary judgment dismissing the complaint insofar as asserted against it (see, Giardina v Avis Rent A Car, 135 Misc 2d 1052).

The plaintiff’s remaining contention is unpreserved for appellate review. Thompson, J. P., Santucci, Joy and Altman, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Yoswein, J.), entered March 15, 1995, which granted the motion of the defendant Walsh Messenger Service, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

[387]*387The defendant Abdul Raoufi (hereinafter Raoufi) is an independent contractor who delivered packages for the defendant Walsh Messenger Service, Inc. (hereinafter Walsh), in a vehicle which was owned by Raoufi and leased to Walsh under a written lease agreement. The plaintiff was injured when he was struck by this vehicle as he was crossing a street in Manhattan.

The plaintiff contends, inter alia, that Walsh, as lessee of the vehicle, is vicariously liable for Raoufi’s negligence pursuant to Vehicle and Traffic Law § 388. However, as the Supreme Court properly determined, Vehicle and Traffic Law § 388 only imposes vicarious liability upon a vehicle owner. A lessee of a vehicle is only considered an owner when the "lessee * * * [has] exclusive use [of the vehicle], under a lease * * * for a period greater than thirty days” (Vehicle and Traffic Law § 128). It is clear from the record that Walsh did not have exclusive use of the vehicle since Raoufi also utilized it for his own personal affairs. It is undisputed that the accident occurred on a day when Raoufi was driving the vehicle to attend to a personal matter and not in furtherance of Walsh’s business. Accordingly, the Supreme Court properly granted the motion of Walsh for summary judgment dismissing the complaint insofar as asserted against it (see, Giardina v Avis Rent A Car, 135 Misc 2d 1052).

The plaintiff’s remaining contention is unpreserved for appellate review. Thompson, J. P., Santucci, Joy and Altman, JJ., concur.

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Bluebook (online)

227 A.D.2d 386, 642 N.Y.S.2d 70, 1996 N.Y. App. Div. LEXIS 4943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lisogorsky-v-raoufi-nyappdiv-1996.

Opinion

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