Bernard v. Mumuni

• Decision Date: 18 August 2005
• Docket Number: 4897.
• Citation: 2005 NY Slip Op 06455,802 N.Y.S.2d 1,22 A.D.3d 186
• Parties: KEVIN BERNARD et al., Respondents, v. MUSAH MUMUNI, Appellant, and SADAY ALLHASSAN, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

22 A.D.3d 186

802 N.Y.S.2d 1

2005 NY Slip Op 06455

KEVIN BERNARD et al., Respondents, v. MUSAH MUMUNI, Appellant, and SADAY ALLHASSAN, Respondent, et al., Defendant.

4897.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 18, 2005.

Appeal from an order of the Supreme Court, Bronx County (Janice L. Bowman, J.), entered December 24, 2003. The order denied defendant-appellant's motion for summary judgment dismissing the complaint and all cross claims as against him in a vehicular personal injury action.

Kelly, Rode & Kelly, LLP, Mineola (Eric B. Betron of counsel), for appellant.

Gersowitz, Libo & Korek, P.C., New York City (Andrew L. Libo and Jeff S. Korek of counsel), for Kevin Bernard and others, respondents.

Martin, Fallon & Mullé, Huntington (Larry M. Shaw of counsel), for Saday Allhassan, respondent.

OPINION OF THE COURT

FRIEDMAN, J.

Plaintiff was injured in an accident involving a minivan owned by defendant Musah Mumuni. Prior to the accident, Mumuni had entrusted the minivan to his friend Osmanu Allhassan; at the time of the accident, the vehicle was being driven by Osmanu Allhassan's son, defendant Saday Allhassan, who did not hold a valid driver's license. As more fully discussed below, prior decisions that have applied Vehicle and Traffic Law § 388 in similar situations establish that the evidence in this case raises an issue of fact as to whether Saday Allhassan operated the minivan with Mumuni's implied consent. Accordingly, Mumuni's motion for summary judgment was properly denied.

Given his undisputed ownership of the vehicle, Mumuni is required to come forward with substantial evidence to rebut the strong presumption that Saday Allhassan drove the minivan with Mumuni's consent (see Murdza v Zimmerman, 99 NY2d 375, 380 [2003]). While there may be some uncertainty in the law as to whether the presumption of the owner's consent, by itself, suffices to raise an issue of fact as to consent where the owner's evidence rebutting the presumption is uncontradicted (see Country Wide Ins. Co. v National R.R. Passenger Corp., 407 F3d 84 [2d Cir 2005] [certifying questions to the New York Court of Appeals]; Country Wide Ins. Co. v National R.R. Passenger Corp., 5 NY3d 728 [2005] [accepting such certified questions]), that issue need not detain us here. In this case, the record contains evidence from which a trier of fact could reasonably infer that Saday Allhassan had Mumuni's implied consent to drive the minivan.

To begin, there is a stark disagreement between Mumuni and Osmanu Allhassan as to the directions, if any, Mumuni gave Osmanu Allhassan about the use of the minivan upon entrusting it to him. Mumuni has testified that he specifically instructed Osmanu Allhassan not to drive the vehicle while it was entrusted to him. Osmanu Allhassan, however, has stated under oath: "Mr. Mumuni never advised me not to operate the subject vehicle. He gave me no instructions with respect to the use thereof." Plainly, Osmanu Allhassan's testimony that Mumuni entrusted the minivan to him without imposing any restrictions on its use raises an issue of fact as to whether Mumuni gave his implied consent to Osmanu Allhassan's operation of the minivan (see Tabares v Colin Serv. Sys., Inc., 197 AD2d 571, 572 [1993] [issue of fact as to permissive use arose from conflicting testimony concerning what restrictions, if any, employer placed on employee's use of a company vehicle]). True, Mumuni may argue at trial that his purpose in entrusting the minivan to Osmanu Allhassan (to allow the vehicle to be transferred to a new owner while he was out of the country) weighs against a finding of implied consent. That purpose, however, cannot be said to negate implied consent as a matter of law.

Of course, in order to prevail against Mumuni, plaintiff must prove not only that Mumuni implicitly consented to Osmanu Allhassan's use of the minivan, but also that such implicit consent extended to Saday Allhassan. The record contains sufficient evidence to support such a finding. In the event the trier of fact credits Osmanu Allhassan's testimony that Mumuni did not impose any restrictions on use of the minivan during the entrustment, Mumuni's implied consent to use of the vehicle could reasonably be found to extend to any person Osmanu Allhassan permitted to drive the minivan, either expressly or impliedly. It is well established that, when the owner of a vehicle places it under the unrestricted control of a second person, the owner's consent to use of the vehicle may reasonably be found to extend to a third person whom the second person permits to drive it (see May v Heiney, 12 NY2d 683 [1962]; Jackson v Brown & Kleinhenz, Inc., 273 NY 365, 369 [1937]; Tabares v Colin Serv. Sys., 197 AD2d 571, supra; Schrader v Carney, 180 AD2d 200, 210 [1992]; Lovetere v Stackhouse, 25 AD2d 628 [1966]; Comstock v Beeman, 24 AD2d 931 [1965], affd 18 NY2d 772 [1966]; Brindley v Krizsan, 18 AD2d 971 [1963], affd 13 NY2d 976 [1963]; Clarke v Mason Au & Magenheimer Confectionery Mfg. Co., 240 App Div 1001 [1933], affd 264 NY 661 [1934]). As the Court of Appeals stated in one of the cases cited above: "[The owner,] having thus relinquished its immediate control over the automobile and having vested the control in another [Brown & Kleinhenz, Inc.] without limitation of authority, must not now be heard to question the finding that the consent given by Brown & Kleinhenz, Inc., to [the driver] was impliedly its [the owner's] consent" (Jackson v Brown & Kleinhenz, Inc., 273 NY at 369).^*

While there is no evidence that Osmanu Allhassan gave Saday Allhassan express permission to use the minivan, the record does contain sufficient evidence to give rise to an inference of implied permission. Specifically, Osmanu Allhassan left the keys to the minivan on a table in his house, where Saday Allhassan found them on the day of the accident. Saday Allhassan, who was unaware of Mumuni's entrustment of the minivan to his father, assumed the keys belonged to the vehicle his father had said he would purchase for him. He therefore took the keys, located the minivan, and drove it on a personal errand, during which the subject accident occurred. In our view, a trier of fact could reasonably infer from the totality of these circumstances — the fact that Osmanu Allhassan and Saday Allhassan, a father and son, were members of the same household; the availability of the keys on a table in the house; and Saday Allhassan's knowledge that his father intended to give him a car — that Saday Allhassan reasonably believed that he had his father's permission to drive the minivan (see Matter of Travelers Prop. Cas. Corp. v Maxwill-Singleton, 300 AD2d 225, 226 [2002] [evidence that owner of a car parked it behind his shop and left the keys with his employee was sufficient to support a finding that employee drove the car with owner's consent, notwithstanding owner's testimony that he never gave anyone permission to drive the car]).

The dissent and Mumuni, in propounding their view that the trier of fact could not reasonably infer implicit consent by Mumuni to Saday Allhassan's use of the minivan, rely heavily on the fact that Saday Allhassan did not hold a driver's license, but only a learner's permit, at the relevant time. The argument seems to be that an owner who entrusts his or her vehicle to a friend, even if the owner does so without articulating any restrictions on the vehicle's use, should not be deemed to consent to the friend's allowing an unlicensed person to drive the vehicle. The short answer to this argument is that it has already been rejected by the Court of Appeals. In Brindley v Krizsan (supra), the Court of Appeals affirmed (13 NY2d 976) this Court's affirmance (18 AD2d 971) of a judgment against a car owner, notwithstanding that the unlicensed driver had been given control of the car, not by the owner himself, but by an intermediary to whom the owner had entrusted the car. In affirming the judgment, we explained (18 AD2d at 972):

"Here, there is support for the finding of the trial court that the owner vested his friend Zsombok with general control of the car without limitation of authority. Under these circumstances, a driver to whom Zsombok loaned the car was properly found to be driving it with the implied consent of the owner, and the fact that such driver was unlicensed does not affect the statutory responsibility of the owner." (Emphasis added and citations omitted.)

The result in Brindley is readily explained as required by the policy animating Vehicle and Traffic Law § 388, namely, "that one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant" (Murdza v Zimmerman, 99 NY2d at 379, quoting Continental Auto Lease Corp. v Campbell, 19 NY2d 350, 352 [1967]). Where the owner of a vehicle entrusts it to another person without setting forth any express restrictions as to the vehicle's use, and the person entrusted with the vehicle permits an unlicensed third person to drive it, the financial burden of an accident caused by the unlicensed driver's negligence should fall on the owner, who put in motion the chain of events leading to the accident. That burden should not fall on an innocent stranger, such as plaintiff in this action, who happens to be injured in the accident. In order to give full effect to the policy of Vehicle and Traffic Law § 388, the driver's lack of a license should not preclude a finding that he or she operated the vehicle with the owner's implied consent (see Carter v Travelers Ins. Co., 113 AD2d 178, 181-182 [1985] [to effectuate the policy of section 388, owner who left his car at an attended parking lot was deemed to have consented to the operation of the car by an unlicensed parking lot attendant]).

The dissent attempts to distinguish Brindley from the instant case on the ground that the driver in Brindley "had the express permission of the...