Opinion
656/04.
Decided June 14, 2004.
The cases of Jensen v. Garcia and Feng v. Garcia were tried jointly due to the fact that each claim originated from the identical motor vehicle accident on March 27, 2004. A trial convened on June 3, 2004 in the Richmond County Small Claims Part.
The uncontested facts are as follows: On Saturday March 27, 2004 at one o'clock in the morning Claimant Debra Jensen's 1994 Altima GLE was parked on Willow Lane in Staten Island, New York along side Claimant Ziyu Feng's 1995 Jeep Grand Cherokee Limited when Defendant Thomas J. Garcia's 1994 Nissan Pathfinder careened into both vehicles causing extensive damage to each.
At trial, Mr. Feng testified that he and his daughter were actually awakened by the noise of the collision and found Defendant's vehicle perpendicular to Mr. Feng's car. Ms. Jensen's vehicle was parked adjacent to Mr. Feng's car and incurred substantial damage. As evidence of the damage to her vehicle, Ms. Jensen submitted two estimates along with bills for towing the vehicle from the accident scene, storage and rental car expenses. (Claimant's Exh. J1-J4). Mr. Feng proffered photographs depicting Defendant's vehicle at a 90 degree angle to his Jeep Cherokee, damage to his vehicle and to Ms. Jensen's vehicle. (Claimant's Exh. F2-F5). He also produced a repair estimate which was prepared by Traveler's, Defendant's insurance carrier. (Claimant's Exh. F1).
Defendant Thomas Garcia testified that at the time of the accident, he had exited the vehicle to walk a friend, Amanda, to her door. His three passengers, Mario Colucci, Jr., Anthony C. Valore and Richard E. Don remained in the vehicle. Mr. Garcia averred that he left his keys in the ignition and testimony elicited from the witnesses revealed that the passengers wished to continue to listen to the radio. The Defendant contends that in his absence from the vehicle, Mario Colucci, Jr., who had a New York State Learner's Permit, drove the vehicle resulting in the subject accident. Mr. Garcia maintained at trial that he never gave Mr. Colucci permission to drive the vehicle.
Under the common law, a motor vehicle owner could only be held liable for injuries caused by the negligence of a permissive driver under the theory of agency or respondeat superior. Murdza v. Zimmerman, 99 NY2d 375, 786 NE 440, 756 NYS2d 505 (2003). However, Vehicle and Traffic Law § 388(1) states, in pertinent part, as follows:
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 permission, express or implied, of such owner . . .
It is well-settled that this vicarious liability statute was enacted to prevent vehicle owners from escaping from liability by asserting that their vehicles were being used without their authority, thereby leaving those injured without financial recourse. Id. at 379; Morris v. Snappy Car Rental, 84 NY2d 21, 637NE2d 253, 614 NY2d 362 (1994). So as to avoid a loophole wherein an owner can deny that permission was given for another to drive the owner's vehicle, the Court of Appeals held that "proof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied."
Murdza v. Zimmerman, 99 NY2d at 380, quoting Leotta v. Plessinger, 8 NY2d 449, 461, 209 NYS2d 304, 171 NE2d 454 (1960); Stewart v. Town of Hempstead, 240 AD2d 431, 611 NYS2d 909 (2nd Dept. 1994). So as not to defeat the intention of Vehicle and Traffic Law § 388 (1), this presumption ". . . has been characterized as very strong . . ." Bost v. Thomas and Lee, 275 AD2d 513, 712 NYS2d 218 (3rd Dept. 2000), citing Bruno v. Privilegi 148 AD2d 652, 539 NYS2d 403 (2nd Dept. 1989); Stewart v. Town of Hempstead, 204 AD2d at 431; Albouyeh v. County of Suffolk, 96 AD2d 543, 465 NYS2d 50 (2nd Dept. 1983), affd. 62 NY2d 681, 476 NYS2d 522, 465 NE2d 29 (1986). One may rebut the presumption by proffering ". . . substantial evidence sufficient to show that a vehicle was not operated with the owner's consent." Murdza v. Zimmerman, 99 NY2d at 380.
The evidence proffered by Defendant was his own self-serving claim that he did not give Mario Colucci permission to drive the vehicle. When questioned as to the whereabouts of the other witnesses to the accident, namely Mr. Valore and Mr. Don, the Defendant admitted that he did not know. Furthermore, Mr. Garcia did not remember Amanda's last name or her address. However, Mr. Garcia knew them well enough to entrust them with his idling motor vehicle on a Saturday at one o'clock in the morning less than three months ago. He also was aware that at least one passenger, Mr. Colucci, had a learner's permit. Clearly this alone is insufficient to rebut the presumption of implied permission and the defendant has failed to prove by substantial evidence that his vehicle was being driven by Mr. Colucci without his consent. As the trier of fact, the Court finds that Mr. Garcia did not even approach rebutting the presumption of implied consent and that as a matter of law, the Court finds that the Defendant Thomas J. Garcia is legally responsible for the accident herein. Mr. Garcia is truly the quintessential interested witness. The Court weighed the witness' demeanor and the evasiveness in the manner in which the questions were answered. [ See, Stewart v. Town of Hempstead, 240 AD2d 431, 611 NYS2d 909 (2nd Dept. 1994)]
The facts of this matter are clearly distinguishable from those of Burke v. City of New York, 279AD2d 381, 720 NYS2d 25 (1st Dept. 2001), which Defendant cited at trial. In Burke the owner's car was stolen and the Court found the Defendant not liable because he had not left the running vehicle unattended in violation of Vehicle and Traffic Law § 1210(a). In the matter at bar, the issue is not whether the vehicle was left unattended, but whether implied consent was given to Mr. Colucci to drive the vehicle. For the foregoing reasons, the Court finds that Defendant did not proffer substantial evidence to rebut the presumption of implied consent.
Accordingly, judgment is entered against Defendant Thomas J. Garcia as follows:
Judgment in favor of Claimant Debra Jensen in the amount of $24,117.38, representing the market value of Ms. Jensen's 1994 Nissan Altima GLE ($2,650.00), towing and storage fees paid to DeVille Auto Collision, Inc. ($977.63) and the Enterprise Rent-A-Car expenditure ($489.75); and
Judgment in favor of Claimant Ziyu Feng in the amount of $1,691.29 representing the vehicle repair estimate prepared by Defendant's insurance company Travelers for the repair of Mr. Feng's 1995 Jeep Grand Cherokee Limited.
This is the Decision and Order of the Court.
Clerk to notify all sides.