Opinion
May 17, 1971
In a negligence action to recover damages for personal injuries, plaintiff appeals from (1) a judgment of the Supreme Court, Queens County, entered September 4, 1970 in favor of defendant Viscarra upon the trial court's dismissal of the complaint after denying plaintiff's motion for a continuance of a jury trial during the course of plaintiff's case, and (2) an order of the same court, dated August 21, 1970, which denied plaintiff's motion to set aside said decision and for a new trial. Appeal from order dismissed, without costs. No appeal lies from an order denying a motion to set aside the trial court's determination of the action upon trial, when the motion is made solely on the trial minutes. Judgment reversed, on the law, and new trial granted as against defendant Viscarra, with costs to abide the event. The questions of fact have not been considered. The complaint was prematurely dismissed. Proof of ownership of an automobile creates a rebuttable presumption of its use with permission of the owner, express or implied (Vehicle and Traffic Law, § 388, subd. 1; Ferris v. Sterling, 214 N.Y. 249, 253; Smyth v. Pellegrino, 28 A.D.2d 537). Defendant should have been put to her proof as to knowledge, consent, and permission to use, when her unattended vehicle was found at the scene of the accident with front-end damage. We reach no other question. Latham, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.