Opinion
December 2, 1993
Appeal from the Supreme Court, New York County (Phyllis Gangel-Jacob, J.).
We agree with the IAS Court that the credibility of defendant's sworn deposition testimony that he gave his friend permission to use his car only to go out and buy cigarettes, not to travel from Baltimore to New York, must be determined by a jury, and that until there has been such a credibility determination the question of consent remains in issue. The presumption of consent to use a motor vehicle is rebuttable and, "the question of consent and authority ordinarily presents an issue of fact." (Reyes v Sternberg, 27 A.D.2d 828; see also, Lincoln v Austic, 60 A.D.2d 487, 491.) Stated otherwise, the presumption of consent was not "sufficiently rebutted" by defendant's deposition testimony to warrant judgment in his favor as a matter of law (compare, Guerra v Kings Plaza Leasing Corp., 172 A.D.2d 583).
Concur — Ellerin, J.P., Wallach, Kupferman and Nardelli, JJ.