Walls v. Zuvic

• Decision Date: 30 September 1985
• Parties: Margaret Mary WALLS, et al., Appellants, v. Roseanne ZUVIC, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 628

493 N.Y.S.2d 628

113 A.D.2d 936

Margaret Mary WALLS, et al., Appellants, v. Roseanne ZUVIC, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 30, 1985.

Perry Satz, P.C., Poughkeepsie (Michael W. Kirshon, Poughkeepsie, of counsel), for appellants.

Moran, Spiegel, Pergament & Brown, Fishkill (Jacqueline A. Olivet, Fishkill, of counsel), for respondent.

Before BROWN, J.P., and WEINSTEIN, NIEHOFF and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., plaintiff Margaret Mary Walls appeals from a judgment of the Supreme Court, Dutchess County, entered August 8, 1983, which was in favor of defendant dismissing the complaint, upon a jury verdict.

Judgment affirmed, with costs.

Vehicle and Traffic Law § 388(1) provides that the owner of a motor vehicle is liable for the negligence of one who uses or operates the vehicle with his or her permission. This section gives rise to a presumption that the vehicle is being operated with the owner's consent (see, Leotta v. Plessinger, 8 N.Y.2d 449, 461, 209 N.Y.S.2d 304, 171 N.E.2d 454; Aetna Cas. & Sur. Co. v. Brice, 72 A.D.2d 927, 422 N.Y.S.2d 203, affd. 50 N.Y.2d 958, 431 N.Y.S.2d 528, 409 N.E.2d 1000, for reasons stated in mem at the App Div; Albouyeh v. County of Suffolk, 96 A.D.2d 543, 544, 465 N.Y.S.2d 50, affd. 62 N.Y.2d 681, 476 N.Y.S.2d 522, 465 N.E.2d 29). This strong presumption continues until there is substantial evidence to the contrary (see, Leotta v. Plessinger, supra; Aetna Cas. & Sur. Co. v. Brice, supra; Albouyeh v. County of Suffolk, supra ). It is equally well established that in granting permission for the use of an automobile, the owner may limit its use to a specified area or purpose. Any use outside of this scope of permission negates the owner's liability under Vehicle and Traffic Law § 388 (see, Hardeman v. Mendon Leasing Corp., 87 A.D.2d 232, 450 N.Y.S.2d 808, affd. 58 N.Y.2d 892, 465 N.Y.S.2d 50, De Lancey v. Nationwide Ins. Co., 26 A.D.2d 631, 272 N.Y.S.2d 468, affd. 20 N.Y.2d 807, 284 N.Y.S.2d 701, 231 N.E.2d 288; Harper v. Parker, 12 A.D.2d 327, 211 N.Y.S.2d 325, affd. 11 N.Y.2d 1095, 230 N.Y.S.2d 719, 184 N.E.2d 310; Arcara v. Moresse, 258 N.Y. 211, 179 N.E. 389). Thus, proof of a limitation on the permission for the use of an automobile may serve to rebut the presumption of consent. "When, as here, the owner does offer proof tending to rebut the presumption of consent, the issue then becomes a question of fact for the jury" (Lincoln v. Austic, 60 A.D.2d 487, 491, 401 N.Y.S.2d 1020).

In the instant case, evidence in the record indicates that the defendant, owner of a 1975 Chrysler Cordoba automobile, entrusted her car to the mother of plaintiff Margaret Mary Walls for several days for the purpose of her deciding whether to purchase the car for Margaret's use in commuting to school. The parties both admit that Margaret (hereinafter plaintiff) was given permission to test drive the car and to have it inspected by a mechanic if she so desired. Defendant left the car with plaintiff's mother on a Sunday with the understanding that a decision as to whether to purchase it was to be made on the following Wednesday. On Tuesday plaintiff drove the car to pick up her boyfriend and then, after picking up two of his friends, plaintiff allowed her boyfriend to drive the car. He first drove to a store and...