Opinion
09-29-2017
Sheltrice N. RHODES, Plaintiff–Respondent, v. Jenny SCOTT, Defendant, and Darryl Epps, Defendant–Appellant.
Law Office of Daniel R. Archilla, Buffalo (Emily M. Cobb of Counsel), for defendant-appellant. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for plaintiff-respondent.
Law Office of Daniel R. Archilla, Buffalo (Emily M. Cobb of Counsel), for defendant-appellant.
Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for plaintiff-respondent.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries she sustained when she was struck, in a hit and run accident, by a vehicle owned by Darryl Epps (defendant) and allegedly driven by defendant Jenny Scott. Defendant moved for summary judgment dismissing the complaint against him on the ground that Scott operated his vehicle without his permission. We conclude that Supreme Court properly denied the motion inasmuch as defendant failed to meet his initial burden (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). "It 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" ( Liberty Mut. Ins. Co. v. General Acc. Ins. Co., 277 A.D.2d 981, 981–982, 716 N.Y.S.2d 515 [internal quotation marks omitted]; see Murdza v. Zimmerman, 99 N.Y.2d 375, 380, 756 N.Y.S.2d 505, 786 N.E.2d 440 ; Margolis v. Volkswagen of Am., Inc., 77 A.D.3d 1317, 1320, 908 N.Y.S.2d 479 ). " ‘The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use’ " ( Talat v. Thompson, 47 A.D.3d 705, 706, 850 N.Y.S.2d 486 ; see Ellis v. Witsell, 114 A.D.3d 636, 637, 979 N.Y.S.2d 826 ; Power v. Hodge, 37 A.D.3d 1078, 1078–1079, 829 N.Y.S.2d 347 ; Lewis v. Caldwell, 236 A.D.2d 896, 896–897, 653 N.Y.S.2d 745 ). Contrary to defendant's contention, Scott's unsworn statement that she was not driving the subject vehicle on the night of the accident and that she did not know him constituted inadmissible proof and could not be considered in support of his motion (see generally Holloman v. City of New York, 74 A.D.3d 750, 751, 904 N.Y.S.2d 79 ; La Frenire v Capital Dist. Transp. Auth., 96 A.D.2d 664, 665, 466 N.Y.S.2d 501 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
WHALEN, P.J., SMITH, CARNI, DeJOSEPH, and CURRAN, JJ., concur.