Powell v. Hertz Corp.

Appellate Division of the Supreme Court of New York

Powell v. Hertz Corp.

182 A.D.2d 441

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

DecidedApril 9, 1992

StatusPublished

This text of 182 A.D.2d 441 (Powell v. Hertz Corp.) 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.

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Powell v. Hertz Corp., 182 A.D.2d 441 (N.Y. Ct. App. 1992).

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[442]*442Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 21, 1991, which denied defendant-appellant’s motion for summary judgment as against plaintiff Ali, unanimously affirmed, with costs.

We agree with the IAS court that defendant has not come forward with substantial evidence conclusively rebutting the presumption that the driver of the automobile was using it with defendant’s consent, express or implied (Leotta v Plessinger, 8 NY2d 449, 461; Carter v Travelers Ins. Co., 113 AD2d 178, 180). It was defendant’s own employee, regardless of the means, who drove the vehicle from a facility controlled by defendant, and defendant thereafter took no affirmative steps to investigate the disappearance until after the accident. Given these circumstances, there remains an issue of fact as to whether defendant’s own acts and omissions, many in violation of its own work rules and procedures, were so unreasonable as to amount to an implied consent. Concur— Murphy, P. J., Rosenberger, Ellerin, Ross and Rubin, JJ.

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[442]*442Order, Supreme Court, New York County (Charles E. Ramos, J.), entered October 21, 1991, which denied defendant-appellant’s motion for summary judgment as against plaintiff Ali, unanimously affirmed, with costs.

We agree with the IAS court that defendant has not come forward with substantial evidence conclusively rebutting the presumption that the driver of the automobile was using it with defendant’s consent, express or implied (Leotta v Plessinger, 8 NY2d 449, 461; Carter v Travelers Ins. Co., 113 AD2d 178, 180). It was defendant’s own employee, regardless of the means, who drove the vehicle from a facility controlled by defendant, and defendant thereafter took no affirmative steps to investigate the disappearance until after the accident. Given these circumstances, there remains an issue of fact as to whether defendant’s own acts and omissions, many in violation of its own work rules and procedures, were so unreasonable as to amount to an implied consent. Concur— Murphy, P. J., Rosenberger, Ellerin, Ross and Rubin, JJ.

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182 A.D.2d 441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-hertz-corp-nyappdiv-1992.

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