Lopes v. Iii

• Decision Date: 31 March 2011
• Citation: 82 A.D.3d 1553,920 N.Y.S.2d 792,2011 N.Y. Slip Op. 02512
• Parties: Michael LOPES, as Administrator of the Estate of Michaella K. Lopes, Deceased, Appellant,v.William H. BAIN III, Respondent.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1553
920 N.Y.S.2d 792
2011 N.Y. Slip Op. 02512

Michael LOPES, as Administrator of the Estate of Michaella K. Lopes, Deceased, Appellant,
v.
William H. BAIN III, Respondent.

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

March 31, 2011.

[920 N.Y.S.2d 793]

E. Stewart Jones, P.L.L.C., Troy (Sarah Spain Holt of counsel), for appellant.Law Office of Theresa J. Puleo, Albany (Laurie M. Lewis of counsel), for respondent.Before: LAHTINEN, J.P., KAVANAGH, McCARTHY and GARRY, JJ.GARRY, J.

[82 A.D.3d 1553] Appeal from an order of the Supreme Court (McKeighan, J.), entered May 18, 2010 in Washington County, which granted defendant's motion to dismiss the complaint.

In the early morning hours of April 21, 2008, Dustin St. Andrews, then 16 years old and without a driver's license, was involved in a car accident while driving a

[920 N.Y.S.2d 794]

motor vehicle owned by defendant, his uncle. St. Andrews was legally intoxicated at the time and lost control of the vehicle while traveling at speeds near 100 miles per hour. The car left the road and struck a tree, killing two of the four passengers. Defendant had been out of the state on a business trip since December 2007; he was informed later that morning by telephone that his vacant home showed signs of forced entry and that his nephew, St. Andrews, had been driving his car at the time of the fatal accident. Defendant denied giving St. Andrews permission to use the car, and pressed charges for the forcible entry and theft.

St. Andrews was charged in a 23–count indictment, including charges of vehicular homicide and burglary, and ultimately pleaded guilty to one count of vehicular manslaughter in the first degree in satisfaction of all charges. In the course of his plea allocution, St. Andrews stated that he did not have permission to drive defendant's car and, in fact, had stolen it. Plaintiff, the administrator of the estate of one of the passengers who died as a result of the accident, commenced this wrongful death [82 A.D.3d 1554] action claiming that defendant, as the owner of the car, was vicariously liable under Vehicle and Traffic Law § 388 because St. Andrews drove the vehicle with defendant's either explicit or implicit consent. Defendant brought this preanswer motion to dismiss pursuant to CPLR 3211(a)(1) and (7).¹ Supreme Court granted the motion, and plaintiff appeals.

Vehicle and Traffic Law § 388 states that “[e]very owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle,” by any person using the vehicle...