Summary
In Lawrence, the court held that summary judgment was not warranted when a rental car company failed to rebut the presumption that a mother gave her son permission to use the rental vehicle.
Summary of this case from Ace Am. Ins. Co. v. FreyOpinion
November 15, 1995
Appeal from the Supreme Court, Monroe County, Rosenbloom, J.
Present — Pine, J.P., Lawton, Callahan, Balio and Davis, JJ.
Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied the motion of defendant rental agency for summary judgment dismissing the consolidated complaints against it but erred in granting the cross motion of defendant Myles for summary judgment on the issue of defendant rental agency's liability. Defendant rental agency failed to meet its burden of conclusively rebutting the presumption that defendant Myles operated the vehicle with his mother's permission, a presumption that may be rebutted only by substantial evidence (see, Leotta v Plessinger, 8 N.Y.2d 449, 461, rearg denied 9 N.Y.2d 688, remittitur amended 9 N.Y.2d 686; Greater N.Y. Mut. Ins. Co. v Clark, 205 A.D.2d 857, 858-859, lv denied 84 N.Y.2d 807; Wynn v Middleton, 184 A.D.2d 1019, 1020). "Where substantial evidence is offered tending to rebut the presumption of consent, the issue becomes a question of fact for the jury" (Wynn v Middleton, supra at 1020).
Here, there are inconsistencies in the deposition testimony of defendant Myles and the affidavit of his mother. According to the deposition testimony of defendant Myles, his mother gave him express permission to operate the vehicle on the day before the accident but did not give him permission to operate it on the day of the accident. According to the affidavit of the mother, she never gave her son permission to operate the vehicle. The testimony of defendant Myles that his mother gave him express permission to operate it on the day before the accident raises an issue of fact whether his mother gave him implied permission to operate the vehicle on the day of the accident (see, MVAIC v Levinson, 218 A.D.2d 606; Greater N.Y. Mut. Ins. Co. v Clark, supra; Wynn v Middleton, supra). That issue of fact precludes summary judgment to either party.
We modify the order on appeal, therefore, by denying the cross motion of defendant Myles for summary judgment determining that defendant rental agency is liable for plaintiffs' damages.
All concur except Balio, J., who dissents in part and votes to reverse in the following Memorandum:
I respectfully dissent in part. I agree with the majority that Supreme Court should have denied the cross motion of defendant Myles for summary judgment. I further agree with the principle that, "[w]here substantial evidence is offered tending to rebut the presumption of consent, the issue becomes a question of fact for the jury" (Wynn v Middleton, 184 A.D.2d 1019, 1020 [emphasis added]). However, summary judgment is appropriate when, as here, the uncontroverted testimony of defendant Myles at his examination before trial establishes that he did not have permission, express or implied, to drive the vehicle at the time of the accident, the day after the prom, and the affidavit of the mother likewise states that defendant Myles did not have such permission (see, Albouyeh v County of Suffolk, 62 N.Y.2d 681, 683; Leonard v Karlewicz, 215 A.D.2d 973; Pow v Black, 182 A.D.2d 484; Guerra v Kings Plaza Leasing Corp., 172 A.D.2d 583, 584; Polsinelli v Town of Rotterdam, 167 A.D.2d 579, 580-581; Bruno v Privilegi, 148 A.D.2d 652, 653; Gee v Gee, 113 A.D.2d 736). There is no inconsistency between the testimony of defendant Myles and the affidavit of his mother on that issue, and any inconsistency regarding other matters does not preclude summary judgment (see, Albouyeh v County of Suffolk, supra). The uncontroverted evidence that the mother did not give defendant Myles permission to drive on the day after the prom did more than tend to rebut the presumption. Absent the submission of evidence by plaintiff contradicting such proof, the presumption was conclusively rebutted (see, Leonard v Karlewicz, supra; Pow v Black, supra; Guerra v Kings Plaza Leasing Corp., supra). Defendant Myles properly observes that the owner of a rental vehicle cannot escape liability by relying upon provisions in a lease agreement restricting the use of a vehicle by the lessee (see, MVAIC v Continental Natl. Am. Group Co., 35 N.Y.2d 260, 265; Wynn v Middleton, supra). The rental agency, however, does not rely upon its lease agreement. Instead, the rental agency correctly maintains that it cannot be held vicariously liable when its lessee expressly prohibits use of the vehicle by a third person (cf., Wynn v Middleton, supra). Thus, I would grant the motion of defendant rental agency for summary judgment dismissing the complaint against it.