Stewart v. Town of Hempstead

204 A.D.2d 431, 611 N.Y.S.2d 909, 1994 N.Y. App. Div. LEXIS 5100

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1994
• Status: Published

Opinions

—In an action, inter alia, to recover damages for personal injuries, the defendants Town of Hempstead and the Water Department of the Town of Hempstead , appeal from an order of the Supreme Court, Nassau County (Molloy, J.), dated July 8, 1992, which, upon renewal, denied their cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Vehicle and Traffic Law § 388 (1) imputes to the owner of a motor vehicle the negligence of one who operates it with the owner’s permission. That section gives rise to a rebuttable presumption that the vehicle is being operated with the owner’s consent (see, Leotta v Plessinger, 8 NY2d 449, 461; see also, Tabares v Colin Serv. Sys., 197 AD2d 571; Wynn v Middleton, 184 AD2d 1019; Scrader v Carney, 180 AD2d 200; Aetna Cas. & Sur. Co. v Santos, 175 AD2d 91; Guerra v Kings Plaza Leasing Corp., 172 AD2d 583). The presumption of consent, moreover, has been characterized as " Very strong’ ” and continues until there is " 'substantial evidence to the contrary’ ” (Bruno v Privilegi, 148 AD2d 652, quoting Albouyeh v County of Suffolk, 96 AD2d 543, 544, affd 62 NY2d 681).

Upon this record, we conclude that the presumption was not rebutted as a matter of law. If the driver of this vehicle had been allowed to use it on several occasions as reflected in the testimony of his supervisor given at an examination before trial, a jury could reasonably conclude that his use of the vehicle on the night of the accident was with the implied permission of the appellants.

The appellants have not met their burden of overcoming the presumption of consent created by the statute. We therefore find that summary judgment is not appropriate, and the issue of consent is properly for the jury. Rosenblatt, Ritter and Friedmann, JJ., concur.