In re Markham

• Decision Date: 14 February 2014
• Citation: 2014 N.Y. Slip Op. 01046,114 A.D.3d 1251,980 N.Y.S.2d 676
• Parties: David R. MARKHAM, Christine V. Markham and James Markham, as Administrator of the Estates of Steven R. Markham and Sandra H. Markham, Deceased, Plaintiffs–Respondents, v. Edward J. SCHMIEDER, Bruce C. Kershenski, Defendants–Respondents, Nothnagle Drilling, Inc., Defendant–Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1251
980 N.Y.S.2d 676
2014 N.Y. Slip Op. 01046

David R. MARKHAM, Christine V. Markham and James Markham, as Administrator of the Estates of Steven R. Markham and Sandra H. Markham, Deceased, Plaintiffs–Respondents,
v.
Edward J. SCHMIEDER, Bruce C. Kershenski, Defendants–Respondents,
Nothnagle Drilling, Inc., Defendant–Appellant, et al., Defendant.

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

Feb. 14, 2014.

Flink Smith LLC, Albany (Edward B. Flink of Counsel), for Defendant–Appellant.

Bond, Schoeneck & King, PLLC, Syracuse (John H. Callahan of Counsel), for Plaintiffs–Respondents.

Hiscock & Barclay, LLP, Rochester (Mark T. Whitford, Jr., of Counsel), for Defendant–Respondent Edward J. Schmieder.

Costello, Cooney & Fearon, PLLC, Camillus (Daniel R. Rose of Counsel), for

[980 N.Y.S.2d 677]

Defendant–Respondent Bruce C. Kershenski.

PRESENT: FAHEY, J.P., LINDLEY, SCONIERS, and WHALEN, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for personal injuries, loss of consortium and wrongful death resulting from a motor vehicle accident in which a vehicle owned by defendant Nothnagle Drilling, Inc. (NDI) and operated by defendant Edward J. Schmieder (Schmieder), an employee of NDI, struck motorcycles operated by Steven R. Markham (Steven), Sandra H. Markham (Sandra) and plaintiff David R. Markham (David). Steven and Sandra were killed in the accident, and David sustained personal injuries. According to plaintiffs, NDI is vicariously liable for Schmieder's negligence because Schmieder was operating the NDI–owned vehicle with NDI's permission. NDI subsequently moved for summary judgment dismissing the complaint and any cross claims against it, and Supreme Court denied the motion. We affirm.

“ ‘[I]t is well settled that Vehicle and Traffic Law § 388(1) creates a strong presumption that the driver of a vehicle is operating it with the owner's permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary’ ” ( Margolis v. Volkswagen of Am., Inc., 77 A.D.3d 1317, 1320, 908 N.Y.S.2d 479;see Leotta v. Plessinger, 8 N.Y.2d 449, 461, 209 N.Y.S.2d 304, 171 N.E.2d 454,rearg. denied9 N.Y.2d 688, 212 N.Y.S.2d 1025, 173 N.E.2d 246mot. to amend remittitur granted9 N.Y.2d 686, 212 N.Y.S.2d 421, 173 N.E.2d 241). As the undisputed owner of the subject vehicle, NDI is presumed to have granted permission to Schmieder to have been operating it at the time of the accident ( s...