Opinion
127.
Decided May 9, 2006.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered August 18, 2005. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Bronx County (Janice L. Bowman, J.), which had denied defendant-appellant Mumuni's motion for summary judgment dismissing the complaint and all cross claims as against him. The following question was certified by the Appellate Division: "Was the decision and order of this Court, which affirmed the order of the Supreme Court, properly made?"
Plaintiffs commenced this negligence action seeking damages for injuries sustained when their motor vehicle was involved in an accident with a vehicle owned by defendant-appellant and driven by the unlicensed son of defendant-appellant's friend to whom he had allegedly entrusted the vehicle.
The Appellate Division majority concluded that defendant-appellant failed to rebut the presumption that his vehicle had been driven with his consent (Vehicle and Traffic Law § 388); that the record contained evidence from which a trier of fact could reasonably infer that the son had defendant-appellant's implied consent to drive the vehicle; and that the fact that the driver only possessed a learner's permit did not negate the presumption of implied consent.
Bernard v. Mumuni, 22 AD3d 186, affirmed.
Rivkin Radler LLP, New York City (Harris J. Zakarin of counsel), for appellant.
Martin, Fallon Mullé, Huntington ( Richard C. Mullé of counsel), for Saday Allhassan, respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ. Judge R.S. SMITH dissents and votes to reverse for the reasons stated in the dissenting opinion by Justice John W. Sweeny at the Appellate Division ( 22 AD3d 186, 191-193) Concur.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the opinion by Justice David Friedman at the Appellate Division ( 22 AD3d 186).