The plaintiffs who were passengers in a town car that was involved in a collision sued for a damaged as a result of the injuries suffered. The plaintiffs sued the both the driver of motor vehicle that was responsible for the accident as well as the owner of the town car. The first defendant, who was the driver of the motor car pleaded guilty to vehicular assault in the second degree and driving while intoxicated. The second defendant, who was the owner of the town car, requested summary judgment against the plaintiffs on the grounds that the town car was being driven and operated without his consent or permission as he only gave him permission for a test drive the car in contemplation of purchasing it. He also argued that sole cause of the accident was the failure of the first defendant to yield the right-of-way in violation of Vehicle and Traffic Law § 1142 (a). The Supreme Court granted summary judgment dismissing the complaint against the second defendant. The plaintiffs appealed. DUI was not charged.
The Appellate Division of the Supreme Court reversed the decision with cost payable to the plaintiffs as the second defendant failed to show a prima facie entitlement to summary judgment. Genuine issues of material fact existed as to whether driver had consented to operate owner’s vehicle at time of an accident and whether driver was partially at fault for accident, which precluded summary judgment for owner in passengers’ action seeking to recover damages for personal injuries they had sustained. The trial court should have denied the judgment to the second defendant for the complaint against him. There was no DWAI.
However, a passenger was successful at the trial court level in dismissing the request for summary judgment by the second defendant. The second defendant then appealed the decision of the trial court on the grounds that the driver of the town car was not authorized to operate the vehicle and that the proximate cause of the accident was actions of the first defendant. The Appellant Division held that under the requisite provision Vehicle and Traffic Law there was a presumption that the operator of the vehicle operated with the owner’s permission whether express or implied which made every owner liable for injuries resulting from negligent use or operation a vehicle. However, this presumption could be rebutted where the owner presented substantial evidence that the driver did not have consent or permission to operate the vehicle. DWI was not involved.
The owner of the town car which was hit by the first defendant failed to establish a prima facie entitlement to judgment as a matter of law on the issue of consent. The only evidence the owner submitted on issue of consent was his own deposition testimony in which he asserted that on evening prior to accident, he gave the driver of vehicle permission to “test drive” vehicle in contemplation of purchasing it, but that he only gave operator permission to drive vehicle until certain time. The second defendant also failed to establish his prima facie entitlement to judgment as a matter of law on issue of drivers’ comparative fault, in personal injury action brought by the passenger in his vehicle, since he failed to submit evidence demonstrating that sole proximate cause of accident was the first defendant’s failure to yield right-of-way to his vehicle.
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