This action was commenced on April 16, 2013 after Plaintiff, Ashley B. Jones sustained personal injuries as a passenger on an All-Terrain Vehicle (ATV) that was being operated by Defendant Eric R. Swede, who has yet to appear in the action and is in default. Argument was heard on June 22, 2015.

Defendant Darryl R. Swede is the owner of the ATV in which his grandson, Defendant Eric R. Swede, was operating at the time of the injuries suffered by Plaintiff. The question presented to this Court is whether or not Defendant, Darryl R. Swede gave either express or implied permission to Defendant, Eric R. Swede, (operator of the ATV at the time of the accident). Defendant, Darryl R. Swede is requesting Summary Judgment dismissing the complaint against him.

It is axiomatic that the drastic remedy of summary judgment cannot be granted where there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 NY2d 223; Cullipher v. Traffic Markings, Inc., 259 AD2d 992; Goldstein v. County of Monroe, 77 AD2d 232), or where the issue is "arguable" (Glick & Dolleck v. TriPac Export Corp., 22 NY2d 439; Onondaga Soil Testing, Inc. v. Barton, Brown, Clyde & Loguidice, PC, 69 AD2d 984).

The focus of the Court's consideration on this motion is issue finding, not issue determination, and the affidavits must be scrutinized carefully in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395; Esposito v. Wright, 28 AD3d 1142; Goldstein v. County of Monroe, supra). It is the movant's burden to establish entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact (Zuckerman v. City of New York, 49 NY2d 557; Sillman v. Twentieth Century-Fox Film Corp., [*2]supra; Fialkin v. Hodnik, 226 AD2d 1134).

The failure to do so requires denial of the motion regardless of the sufficiency of the opponent's papers (Winegrad v. New York University Medical Center, 64 NY2d 851; Florea v. County of Erie, 123 AD2d 514; Monroe Abstract & Title Corp. v. Giallombardo, 54 AD2d 1084).

"It is well established that a party cannot obtain summary judgment 'by pointing to gaps in its opponent's proof' " (Frank v. Price Chopper Operating Co., Inc., 275 AD2d 940, 941; quoting, George Larkin Trucking Co. v. Lisbon Tire Mart, 185 AD2d 614, 615; see also, Orcutt v. American Linen Supply Co., 212 AD2d 979, 980).

To defeat summary judgment, the opponent must present evidentiary facts sufficient to raise a triable issue of fact, and averments merely stating conclusions, of fact or of law, are insufficient (e.g., Ehrlich v. American Moninger Greenhouse, 26 N Y 2d 255, 259; P. D. J. Corp. v. Bansh Props., 29 A D 2d 927, affd. 23 N Y 2d 971; 4 Weinstein-Korn-Miller, NY Civ. Prac., para. 3212.05c, esp. p. 32-142.36; 6 Carmody-Wait, NY Prac. [2d ed.], § 39:29). (Mallad Constr. Corp. v County Fed. S & L Ass'n, 32 NY2d 285, 290 [1973].).

As relevant here, Vehicle and Traffic Law section 2411 imposes liability on an owner of an ATV for personal injury caused by any person using or operating the ATV with express or implied permission. The parties do not dispute that Vehicle and Traffic Law section 2411 gives rise to a presumption of permission that may be rebutted only by substantial evidence to the contrary (Leotta v Plessinger, 8 NY2d 449 [1960].).

The Court need not address the issue of express permission since the facts, and both counsel agree, that there was no express permission by Defendant, Daryl R. Swede to Defendant, Eric R. Swede to use the ATV. This Court will look at implied permission only.

This Court believes that Defendant, Daryl R. Swede, through uncontradicted statements and deposition testimony of the owner, Darryl R. Swede, the operator, Eric R. Swede and Eric R. Swede's mother, Laurie Cutcliffe, that Defendant, Eric R. Swede, was using and operating the ATV at the time of the accident without the implied permission of Defendant, Daryl R. Swede.

Extensive discovery has been conducted in this case. Based on the evidence submitted by both parties, there is nothing in the facts, nor evidence to show or infer, that Defendant, Daryl R. Swede gave implied permission to his grandson, Defendant, Eric R. Swede to operate the ATV. This Court believes that the uncontradicted disavowals of permission by both the owner of the vehicle and the driver, and a third party, constitutes the required, substantial evidence to shift the burden to the Plaintiff opposing the motion to establish a genuine factual basis to defeat the motion and to raise a question for jury determination.

The Plaintiff must then establish and present competent evidence of "implausibility, collusion, or implied permission" in order to defeat the motion and allow the issue of consent to presented to a jury" (Country Wide Ins. Co. v Nat'l R. R. Passenger Corp., 6 NY3d 172 [2006].). The Plaintiff, however, is unable to do so, in that the only opposition comes by way of an Attorney Affirmation, an MV-104A by the Genesee County Sheriff's Department and correspondence from Plaintiff's counsel to Defendant Darryl Swede notifying him of representation.

Therefore, Defendant, Darryl Swede is entitled to summary judgment dismissing the complaint against him.

Defendant Daryl Swede may submit judgment accordingly. The foregoing constitutes the Decision and Order of the Court.