The following papers numbered were read on this motion:

Notices of Motion, Affirm., Exhibits..............................................................1

Affirmations in Opposition..............................................................................2

Affirmations in Reply.......................................................................................3

CHARLES J. MARKEY, J.:

The plaintiff was a pedestrian crossing the street when she was hit by a tow truck owned by defendant and operated by co-defendant Jeremy O. Nedd, who was driving with a suspended license. Nedd was arrested and pled guilty in Criminal Court, Queens County, on January 30, 2006, of driving without a proper license in violation of Vehicle and Traffic Law section 509(1). Nedd paid the maximum fine of $300. Based on Nedd's plea, plaintiff moves for summary judgment on the issue of liability.

In response to the motion, counsel for Cross County Towing, Inc., cites Hanley v Albano, 20 AD2d 644 [1964], where the Appellate Division, Second Judicial department held that a driver's license relates only to the authority for the operation of a vehicle, and not to its manner of operation. The Second Department, in Hanley, stated that the absence of a license is not even presumptive evidence of negligence. [*2]

In response to the invocation of this case by defense counsel, plaintiff's lawyer asks this Court, simply as a policy issue, to question the continued viability of Hanley. Before asking this Court to take the audacious step of not following a binding, although "old," precedent, it would have behooved counsel to have done thorough legal research and even to cite Hanley v Albano and discuss why it allegedly should no longer be followed. Plaintiff's counsel failed to do so, thereby prompting the Court to conduct its own independent legal research.

Had plaintiff's counsel done her research, she would have discovered that the holding of Hanley v Albano is not the only precedent on this issue. Almonte v Marsha Operating Corp., 265 AD2d 357 [2nd Dept. 1999] [{"the fact that Cruz was unlicensed failed to demonstrate that he was negligent, as the absence or possession of a driver's license relates only to the authority for operating a vehicle, and not to its manner of operation."]. The Second Department, in Firmes v Chase Manhattan Automotive Finance Corp. (50 AD3d 18 [2008]), discussed the application of the "Barker/Manning rule," precluding the award of relief to plaintiffs who are injured in the knowing and intentional commission of serious criminal acts, observed:

. . . We reject the argument that Firmes'[s] conduct in operating his motorcycle without a valid license, registration, or insurance is sufficiently serious illegal activity to completely bar his recovery on public policy grounds [citations omitted].

The Supreme Court providently exercised its discretion in precluding [defendants] from introducing any evidence that the plaintiff lacked a license to operate the motorcycle, registration and insurance. [citations omitted]. The absence or possession of a driver's license relates only to the authority for operation, and not to the manner thereof [citations omitted], and the same reasoning applies to Firmes'[s] failure to have proper registration and insurance.

Id. at 27; accord, Eyrich v Estate of Waldemar, 327 Ill App 3d 1095, 1099, 765 NE2d 504, 507 [2002] [failure of a motorcyclist to have a valid operator's license is not evidence of negligence]; Lawrence v Taylor, 8 P3d 607 [Colo. Ct App 2000][evidence that motorcyclist's license was suspended at the time of the accident was inadmissible].

The only authority that might arguably, but not convincingly, support the position of the plaintiff in the present case that the fact that defendant Nedd drove with a suspended license should constitute a finding of negligence per se is Klanseck v Anderson Sales & Service, Inc. (136 Mich App 75, 80-83, 356 NW2d 275, 277-278 [1984] [2-1 decision] [majority held that trial court properly charged jury that it could infer negligence on plaintiff's part because he was driving the motorcycle without a proper licensing endorsement and also because plaintiff violated "the basic speed law"].

The Court's independent legal research has yielded the case of Coogan v Torrisi, 47 AD3d 669 [2nd Dept. 2008] that might be helpful to the plaintiff. In that case, the Second Department held that the appellant's violation of Vehicle and Traffic Law was negligence per se and that the restriction placed upon appellant's learner's permit, requiring him to have a licensed [*3]adult driver supervising his actions when driving, related directly to the actual operation of the vehicle. Accordingly, the Vehicle and Traffic Law statute set up a standard of care, and the appellate court stated that the violation of the statute, without adequate excuse, constituted negligence per se. Plaintiff in this case, however, cannot rely on the holding in Coogan because the Second Department in that case stated that plaintiff's violation "related directly to the actual operation of the vehicle." Id. at 670. In the present case, however, the fact that co-defendant Nedd drove the tow truck with a suspended license did not relate directly to the issue of his operation of the vehicle.

The plaintiff's motion for summary judgment on the issue of liability is thus denied.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________

Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

April 13, 2011