Davis v. Hall
| Decision Date | 08 November 1996 |
| Docket Number | A-C |
| Citation | 233 A.D.2d 906,649 N.Y.S.2d 546 |
| Parties | Paul Vashawn DAVIS, Respondent, v. Damon HALL, Defendant, and Thrifty Rent-ar System, Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Saperston and Day, P.C. by Molly McBride, Buffalo, for appellant.
Charles L. Davis, Buffalo, for respondent.
Before PINE, J.P., and FALLON, WESLEY, DAVIS and BOEHM, JJ.
Plaintiff sustained injuries while a passenger in a rental car driven by Damon Hall that was involved in an accident in the City of Buffalo. The car, which was owned by Thrifty Rent-A-Car System, Inc. (defendant), had been rented in Virginia by Eric Johnson, who permitted plaintiff to drive the car to Buffalo. Plaintiff permitted Hall to drive the car in Buffalo. Pursuant to the rental agreement, only Johnson, his spouse or one who signed the agreement were authorized drivers. Neither plaintiff nor Hall signed the rental agreement.
Supreme Court properly determined that Hall was driving the vehicle with the constructive consent of defendant. (Wynn v. Middleton, 184 A.D.2d 1019, 1020, 584 N.Y.S.2d 684).
We conclude that the court erred, however, in granting that part of plaintiff's cross motion for partial summary judgment dismissing the third affirmative defense, which alleged that plaintiff contributed to his injuries by failing to wear a seat belt. Plaintiff, who was asleep in the front passenger's seat when the vehicle struck a light pole, testified that he did not recall whether he was wearing his seat belt. That proof is insufficient to establish, as a matter of law, that plaintiff was wearing his seat belt (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
We therefore modify the amended order by denying in part plaintiff's cross motion for partial summary judgment and...
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