Fuentes v. Virgil

• Decision Date: 02 July 2014
• Citation: 2014 N.Y. Slip Op. 04899,989 N.Y.S.2d 498,119 A.D.3d 522
• Parties: Sergio FUENTES, appellant, et al., plaintiffs, v. Alonzo VIRGIL, defendant, Rosa Martinez, respondent.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 522

989 N.Y.S.2d 498

2014 N.Y. Slip Op. 04899

Sergio FUENTES, appellant, et al., plaintiffs,

v.Alonzo VIRGIL, defendant, Rosa Martinez, respondent.

Supreme Court, Appellate Division, Second Department, New York.

July 2, 2014.

Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant.

Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and Christopher M. Hart of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the plaintiff Sergio Fuentes appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated January 16, 2013, as granted that branch of the motion of the defendant Rosa Martinez which was for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Vehicle and Traffic Law § 388(1) provides that, with the exception of bona fide commercial lessors of motor vehicles, which are exempt from vicarious liability by virtue of federal law ( see49 USC § 30106; Vyrtle Trucking Corp. v. Browne, 93 A.D.3d 716, 940 N.Y.S.2d 279;Castillo v. Amjack Leasing Corp., 84 A.D.3d 1297, 924 N.Y.S.2d 277), the owner of a motor vehicle shall be liable for the negligence of one who operates the vehicle with the owner's express or implied consent ( see Sargeant v. Village Bindery, 296 A.D.2d 395, 744 N.Y.S.2d 508;Matter of Allstate Indem. Co. v. Nelson, 285 A.D.2d 545, 728 N.Y.S.2d 82;Headley v. Tessler, 267 A.D.2d 428, 700 N.Y.S.2d 849). This statute creates a presumption that the driver was using the vehicle with the owner's express or implied permission ( see Murdza v. Zimmerman, 99 N.Y.2d 375, 756 N.Y.S.2d 505, 786 N.E.2d 440;Vyrtle Trucking Corp. v. Browne, 93 A.D.3d at 716, 940 N.Y.S.2d 279;Forte v. New York City Tr. Auth., 2 A.D.3d 489, 767 N.Y.S.2d 888), which only may be rebutted by substantial evidence sufficient to show that the vehicle was not operated with the owner's consent ( see Murdza v. Zimmerman, 99 N.Y.2d 375, 756 N.Y.S.2d 505, 786 N.E.2d 440;Diaz v. Tumbiolo, 111 A.D.3d 877, 975 N.Y.S.2d 761;Vinueza v. Tarar, 100 A.D.3d 742, 743, 954 N.Y.S.2d 160;Marino v. City of New York, 95 A.D.3d 840, 841, 943 N.Y.S.2d 564;Vyrtle Trucking Corp. v. Browne, 93 A.D.3d at 716, 940 N.Y.S.2d 279). Evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use ( see Vyrtle Trucking Corp. v. Browne, 93 A.D.3d at 716, 940 N.Y.S.2d 279;Adamson v. Evans, 283 A.D.2d 527, 724 N.Y.S.2d 760).

Here, the submissions in support of that branch of the motion of the defendant Rosa Martinez which was for summary judgment dismissing the complaint insofar as asserted against her, which included, a transcript of her deposition testimony and certified police records and reports, demonstrated that her vehicle had been stolen and involved in a chase with the police almost immediately prior to the accident with the vehicle operated by the plaintiff Sergio Fuentes. This evidence further demonstrated that the driver of her car, the defendant Alonzo Virgil, was apprehended at the scene and criminally...