Opinion
Submitted November 5, 1999
December 27, 1999
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Leone, J.), dated February 25, 1999, which, upon the granting of the defendants' motion for judgment as a matter of law, made at the close of the evidence, dismissed the complaint.
Pokorny Schrenzel Pokorny, P.C., Brooklyn, N.Y. (Marvin Emmer of counsel), for appellant.
Armienti Brooks, P.C., New York, N.Y. (Louis P. Giordano of counsel), for respondents.
SONDRA MILLER, J.P., CORNELIUS J. O'BRIEN, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
Vehicle and Traffic Law § 388(1) imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his or her permission. This section gives rise to a presumption that the vehicle is being operated with the owner's consent, but the presumption may be rebutted by substantial evidence to the contrary (see, Leotta v. Plessinger, 8 N.Y.2d 449 ; State Farm Mut. Auto Ins. v. White, 175 A.D.2d 122 ; Guerra v. Kings Plaza Leasing Corp., 172 A.D.2d 583 ). Upon this record we conclude that the presumption of consent was rebutted as a matter of law inasmuch as "there was uncontradicted evidence that the * * * driver did not have express permission to operate the motor vehicle involved in the accident; and there was no competent evidence from which permission or authority could be inferred" (Barrett v. McNulty, 27 N.Y.2d 928, 929 ).
S. MILLER, J.P., O'BRIEN, McGINITY, and FEUERSTEIN, JJ., concur.