Opinion
2002-10847.
Decided December 8, 2003.
In a consolidated action to recover damages for personal injuries, the defendant Citiwide Auto Leasing, Inc., d/b/a Dollar Rent A Car, appeals from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated October 24, 2002, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
Gaffin Mayo, P.C., (Christopher Morik of counsel), for appellant.
Kahn Gordon Timko Rodriques, P.C., (Thomas B. Grunfeld of counsel), for plaintiff-respondent Jeraline Morris.
Solomon Kaplan, P.C., (Galina I. Feldsherova of counsel), for plaintiffs-respondents Akisha Brendon and Lindsay Winslow, infants under the age of 18 by their guardian, Rosetta Winslow, and Tyshawn Roberson, an infant under the age of 18 by his guardian, Shalimar Winslow.
Before: THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiffs were injured when the New York City Transit Authority bus in which they were passengers collided with a car driven by the defendant Jimmy Sanchez. The car had been rented by Claudia Hincapie, the wife of Sanchez's cousin, from the defendant Citiwide Auto Leasing, Inc., d/b/a Dollar Rent A Car (hereinafter Citiwide). Citiwide moved for summary judgment on the ground that it could not be held vicariously liable for the negligence of Sanchez because he was not an authorized user of the rented car.
The Supreme Court properly denied Citiwide's motion. Citiwide failed to present evidence sufficient to rebut the presumption, arising from Vehicle and Traffic Law § 388(1), that a vehicle involved in a traffic accident is being operated with the permission of the owner ( see Leotta v. Plessinger, 8 N.Y.2d 449, 461; Walls v. Zuvic, 113 A.D.2d 936). As a commercial lessor of vehicles, Citiwide is deemed to have constructively consented to the operation of its vehicle by anyone using it with the lessee's permission ( see Murdza v. Zimmerman, 99 N.Y.2d 375, 381-382; Motor Vehicle Acc. Ind. Corp. v. Continental Nat. Amer. Group Co., 35 N.Y.2d 260, 265; Lancer Ins. Co. v. Republic Franklyn Ins. Co., 304 A.D.2d 794, 798; Allstate Ins. Co. v. Dailey, 47 A.D.2d 375, 376, affd 39 N.Y.2d 759). While Hincapie submitted an affidavit generally asserting that Sanchez, who was living in her home, was driving the car without her permission at the time of the accident, that affidavit was contradicted in part by the police records regarding the accident and was not corroborated by any statement of Sanchez. Therefore it was insufficient under the circumstances to negate the statutory presumption as a matter of law ( see Progressive Northwestern Ins. Co. v. Weyant, A.D.2d [2d Dept, Oct. 6, 2003]; Roness v. Hertz Corp. (Canada), 283 A.D.2d 416, 417; cf. Manning v. Brown, 91 N.Y.2d 116; Bost v. Thomas, 275 A.D.2d 513, 514-515; Bruno v. Privilegi, 148 A.D.2d 652, 653). Accordingly, the issue of whether the car was operated with Hincapie's permission is one of fact to be determined by a jury.
S. MILLER, J.P., GOLDSTEIN, ADAMS and CRANE, JJ., concur.