Albouyeh v. Suffolk County, 1

• Decision Date: 18 July 1983
• Docket Number: No. 3,No. 1,No. 2,1,2,3
• Citation: 96 A.D.2d 543,465 N.Y.S.2d 50
• Parties: Hassan ALBOUYEH, as Administrator, etc., et al., Plaintiffs-Respondents, v. The COUNTY OF SUFFOLK, et al., Defendants-Respondents; Gaetano Cusimano, Appellant. (Action). Ann RICHARDSON, as Administratrix, etc., et al., Plaintiffs-Respondents, v. The COUNTY OF SUFFOLK, et al., Defendants-Respondents; Gaetano Cusimano, Appellant. (Action). Richard Davis FORBES, III, et al., Plaintiffs-Respondents, v. The COUNTY OF SUFFOLK, et al., Defendants-Respondents; Gaetano Cusimano, Appellant. (Action).
• Court: New York Supreme Court — Appellate Division

Page 50

465 N.Y.S.2d 50

96 A.D.2d 543

Hassan ALBOUYEH, as Administrator, etc., et al., Plaintiffs-Respondents, v. The COUNTY OF SUFFOLK, et al., Defendants-Respondents;

Gaetano Cusimano, Appellant. (Action No. 1).

Ann RICHARDSON, as Administratrix, etc., et al., Plaintiffs-Respondents, v. The COUNTY OF SUFFOLK, et al., Defendants-Respondents;

Gaetano Cusimano, Appellant. (Action No. 2).

Richard Davis FORBES, III, et al., Plaintiffs-Respondents, v. The COUNTY OF SUFFOLK, et al., Defendants-Respondents;

Gaetano Cusimano, Appellant. (Action No. 3).

Supreme Court, Appellate Division Second Department.

July 18, 1983.

Vaccarella & Baldwin, Melville (Louis F. Vaccarella, Melville, of counsel), for appellant.

Richard Weiss, New York City, for plaintiffs-respondents in Action No. 1.

Lipsig, Sullivan & Liapakis, P.C., New York City (Pamela Anagnos Liapakis, Cyrus M. Diamond and Dennis A. Lopez, New York City, of counsel), for plaintiff-respondent Ann Richardson in Action No. 2.

Robinson & Cincotta, Oyster Bay (Stephen J. Lynch, Oyster Bay, on brief), for plaintiffs-respondents in Action No. 3.

Brand & Brand, Garden City (Vincent B. Frontero, Garden City, of counsel), for defendants-respondents Maria Thomas and Parveneh Albouyeh in Action No. 1, defendants-respondents Parvaneh Syeednia and Maria Thomas in Action No. 2, and defendant-respondent Parveneh Albouyeh in Action No. 3.

Mulholland, Minion & Roe, Williston Park (Vincent D. McNamara, Williston Park, of counsel), for defendants-respondents Ann Richardson and Hassan Albouyeh in Action No. 3.

Before TITONE, J.P., and GIBBONS, THOMPSON and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In three actions to recover damages for wrongful death, etc., defendant Gaetano Cusimano appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, dated December 21, 1982, as denied that branch of his motion for summary judgment which sought dismissal of plaintiffs' complaints as against him.

Order reversed insofar as appealed from, on the law, with one bill of costs payable by respondents appearing separately and filing separate briefs, motion granted and complaints dismissed as against defendant Gaetano Cusimano.

Subdivision 1 of section 388 of the Vehicle and Traffic Law imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his permission. That section gives rise to a presumption that the vehicle is being operated with the owner's consent (see Leotta v. Plessinger, 8 N.Y.2d 449, 461, 209 N.Y.S.2d 304, 171 N.E.2d 454; Aetna Cas. & Sur. Co. v. Brice, 72 A.D.2d 927, 422 N.Y.S.2d 203, affd. for reasons stated in mem at App.Div. 50 N.Y.2d 958, 431 N.Y.S.2d 528, 409 N.E.2d 1000). The presumption of consent has been characterized as "very strong" and continues until there is substantial evidence to the contrary (see Leotta v. Plessinger, supra; Aetna Cas. & Sur. Co. v. Brice, supra; Blunt v. Zinni, 32 A.D.2d 882, 883, 302 N.Y.S.2d 504). In the instant case, evidence in the record indicates that the 1963 Buick Wildcat owned by appellant, which was involved in a two-car accident resulting in the deaths of the plaintiffs' decedents, was stolen by the driver defendant Julee Conlon. At her examination before trial, Conlon admitted stealing the car. Testimony elicited at the examination before trial of the police officer who was at the scene of the accident revealed that Conlon admitted to him that she had stolen the vehicle. Although the testimony of appellant and Conlon, elicited at their respective depositions, is at wide variance with reference to the circumstances under which the automobile was stolen, there is no factual issue to be resolved with respect to whether Conlon used the vehicle with the consent of the appellant owner (see General Acc. Group v. Noonan, 66 Misc.2d 528, 321 N.Y.S.2d 483; cf. Santorio v. Diaz, 86 A.D.2d 926, 448 N.Y.S.2d 560; Phoenix v. Bolton, 59 A.D.2d 464, 467, 399 N.Y.S.2d 914).

The remaining question in the case at bar is whether appellant violated subdivision (a) of section 1210 of the Vehicle and Traffic Law. That section reads in pertinent part as follows:

"No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway".

At common law the owner of a vehicle was not liable for the negligence of a thief (see, e.g., Lotito v. Kyriacus, 272 App.Div. 635, 74 N.Y.S.2d 599, mot. for lv. to app. dsmd. 297 N.Y. 1027, 80 N.E.2d 542; Walter v. Bond, 267 App.Div. 779, 45 N.Y.S.2d 378, affd. 292 N.Y. 574, 54 N.E.2d 691; Mann v. Parshall, 229 App.Div. 366, 241 N.Y.S. 673). Hence, at bar, in the absence of an applicable statute, appellant could not be held liable for the damages caused by Conlon in the operation of his vehicle.

A major issue that must be resolved before the applicability of subdivision (a) of section 1210 of the Vehicle and Traffic Law can be determined is whether appellant's vehicle...