The following papers numbered 1 to 9 were read on this motion by defendant RONNIE SCHILD for an order pursuant to CPLR 3212(b) granting defendant summary judgment on the issue of liability and dismissing the plaintiff's complaint against said defendant:

Papers

Notice of Motion-Affidavits-Exhibits.......................1 - 3

Defendant OSBURN's Affirmation in Opposition-Affidavits....4 - 7

Plaintiff's Affirmation in Opposition......................8 - 10

Defendant Schild's Reply Affirmation......................11 - 12

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In this negligence action, the plaintiff, MARYELLEN CROKE, seeks to recover damages for personal injuries that she sustained as a result of a motor vehicle accident that occurred at approximately 1:00 p.m. on April 18, 2009, between the plaintiff's vehicle, and the vehicle owned by defendant Ronnie Schild and operated by defendant Gregory Osburn. Defendant Osburn [*2]was an employee of defendant From the Ground Up Automotive Inc. ("From the Ground UP"). The accident took place on Jericho Turnpike near its intersection with Larkfield Road, Suffolk County, New York.

The plaintiff commenced this action by filing a summons and complaint on November 22, 2009. Issue was joined by service of defendant Schild's verified answer with cross-claim dated November 5, 2009. Co-defendants Osburn and From the Ground Up appeared in this action by service of a verified answer dated November 18, 2009.

Defendant Schild now moves for an order pursuant to CPLR 3212(b), granting summary judgment in his favor and dismissing the plaintiff's complaint against him on the ground that his vehicle was not being operated with his consent, whether implied or express, at the time of the accident. Schild contends that he only requested that From the Ground Up change a flat tire on his vehicle and he did not give them consent to drive his vehicle. In support of the motion, Schild submits a sworn affidavit dated February 11, 2011; an affidavit from counsel, Nancy S. Goodman, Esq; a copy of the pleadings; and a copy of the transcript of plaintiff's examination before trial.

In his affidavit dated February 11, 2011, defendant Ronnie Schild states:

"On Saturday, April 18, 2009, at approximately 1:00 p.m., my 2008 BMW was allegedly involved in an automobile accident with the motor vehicle being operated by plaintiff, Mary Ellen Croke. I was not operating the BMW at the time of the accident, nor was it being operated with my permission or consent. On the evening of Friday, April 17, 2009, my BMW sustained a flat tire such that I was not able to drive it. Accordingly, I left the BMW parked in the Golfsmith parking lot, with its doors locked and no key in the ignition. The following morning, I contacted personnel at From The Ground Up Automotive, Inc. and arranged to have my BMW towed to their repair shop, for the limited purpose of changing a flat tire. Subsequent to making the arrangements to have my car towed, I brought the keys to my BMW to the repair shop — The Ground Up Automotive, Inc. and left them at the shop. The car was locked at the time and I assumed the repairman would need to unlock it to replace the tire. At no time did I give any individual at From The Ground Up repair shop the authority or permission to "test drive" my car. In fact it was my clear understanding that no such "test drive" was necessary as all that was required was a tire change. Later in the day on April 18, 2009, I learned that my car had been involved in an accident while an individual from The Ground Up was driving it. This [*3]individual drove my car without my permission, either express or implied. Clearly, I was not driving the BMW at the time of the accident, nor was the individual who was driving it, permitted to drive it. In this regard, I have been advised of the description of the driver of my vehicle at the time of the accident — a Caucasian male in his early twenties, approximately six feet, two inches tall and weighing three hundred pounds. I am a five foot two Caucasian male. I weigh 145 pounds and I am seventy years old."

In her examination before trial, Maryellen Croke, age 52, stated that on the date in question she was waiting at a red traffic light on Jericho Turnpike when a black BMW being driven by a caucasian male, 6'2", 300 pounds, struck her vehicle in the rear.

Counsel contends that pursuant to Vehicle and Traffic Law § 388(1), the negligence of the operator of the motor vehicle is imputed to the owner where the person operating the vehicle is using it with the permission, express or implied of the owner. Counsel contends that the statute gives rise to a strong presumption that a vehicle is being operated with the owner's consent (citing Headley v Tessler, 267 AD2d 428 [2d Dept. 1999]). However, that presumption can be rebutted by substantial evidence to the contrary (citing Murdza v Zimmerman, 99 NY2d 375 [2003]; Naido v Harwin, 281 AD2d 525 [2d Dept. 2001]). Counsel contends that in the instant matter the presumption of consent is clearly rebutted by Schild's affidavit in which he specifically stated that he gave his vehicle to From the Ground Up for the limited purpose of changing a tire- a task which he believes does not require a test drive (citing Padilla v Felson, 28 AD3d 530 [2d Dept. 2006][summary judgment granted to owner where mechanics used the owner's vehicle, without the express or implied permission of the owner, to drive to a dealership to pick up a part]). Therefore, Schild contends that he has made a prima facie case warranting dismissal of the plaintiff's action against him as the evidence is sufficient to show that he rebutted the presumption that the operator of his vehicle was driving it at he time of the accident without his express or implied consent.

In opposition to the motion, the plaintiff submits an affirmation from counsel, Randy Miller, Esq. in which he states that Schild's affidavit is insufficient to show that he did not give From the Ground Up permission to use his vehicle as the affidavit does not state in what manner he did not give anyone permission to test drive his vehicle or how it was his understanding that no test drive was necessary (citing Reyes v Sternberg, 27 AD2d 828 [1st Dept. 1967]). [*4]

Defendant, From the Ground Up, has also submitted an affirmation in opposition stating that Schild's affidavit is deficient in that it does not state whether Schild spoke to anyone at the repair shop regarding the use of the vehicle and whether there was anything discussed regarding test driving the vehicle. Thus co-defendant contends that plaintiff has not substantially rebutted the presumption of VTL § 388 and that questions of fact remain which should be presented to the jury regarding the issue of consent and permissive use of the vehicle. Co-defendant contends that because Schild left the keys with the repair shop that the only reasonable conclusion could be that Schild impliedly consented to the use of his vehicle.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

Pursuant to Vehicle and Traffic Law § 388:

"Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner."

As stated by the Court of Appeals in Murdza v Zimmerman, 99 NY2d 375 [2003], "section 388 was designed to remove the hardship which the common-law rule visited upon innocent persons by preventing 'an owner from escaping liability by saying that his car was being used without authority or not in his business'[citations omitted]. The Court also stated that "an equally important policy reflected in section 388 is the heightened degree of care owners are encouraged to exercise when selecting and supervising drivers permitted to operate their vehicles." In view of these policy considerations, this section gives rise to a very strong' presumption that the vehicle is being operated with the owner's consent (see Nelson v Ford Motor Credit Co., 41 AD3d 444 [2d Dept. 2007]; General Accident Ins. Co. v. Bonefont, 277 AD2d 379 [2d Dept. 2000]; Headley v Tessler, 267 AD2d 428 [2d Dept. 1999]). However, the courts have held that this presumption may be rebutted by substantial evidence to the contrary (see Panteleon v Amaya, 927 NYS2d [2d Dept. 2011]; Naidu v Harwin, 281 AD2d 525 [2d Dept. 2001]). [*5]

Here, Schild's affidavit established that he contacted From the Ground Up for the limited purpose of repairing a flat tire and also established that he did not give any individual express or implied permission or authority to test drive his car. Schild's assertion that he turned his keys over to the repair shop only to permit them to unlock the vehicle for purposes of changing a flat tire, is sufficient, prima facie, to rebut the inference of permissive use. Counsel's contention that because Schild left his keys with the repair shop that Schild impliedly consented to the operation of the vehicle is merely speculative. Therefore, Schild's affidavit was sufficient to rebut the presumption that he gave the repair shop express or implied permission to operate the car and established his prima facie entitlement to summary judgment (see Padilla v Felson, 28 AD3d 530 [2d Dept. 2006]).

In opposition to Schild's motion, both plaintiff and co-defendants have only submitted affirmations of counsel and have failed to submit competent evidence to raise a triable issue of fact as to permissive use. Co-defendant failed to supply an affidavit from an individual with knowledge which would indicate the reason why the car was being driven at the time of the accident or that Schild had consented to permit the operator to either test drive his vehicle or take it for a drive on public roadways for any other purpose (see Panteleon v Amaya, 927 NYS2d 85 [2d Dept. 2011]; Padilla v Felson, 28 AD3d 530 [2d Dept. 2006]; Nelson v Ford Moor Credit Company, 41 AD3d 444 [2d Dept. 2007]; Naidu v Harwin, 281 AD2d 525 [2d Dept. 2001]; Headley v Tessler, 267 AD2d 428 [2d Dept. 1999]).

Accordingly, it is hereby

ORDERED, that the motion by defendant Ronnie Schild for an order granting summary judgment on the issue of liability and dismissing the plaintiff's complaint against him is granted and the Clerk of Court is authorized to enter judgment in favor of defendant Ronnie Schild.

Dated: August 16, 2011

Long Island City, NY

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ROBERT J. MCDONALDJ.S.C.