Opinion
April 26, 1971
Order of the Supreme Court, Nassau County, dated October 30, 1969 and interlocutory judgment of the same court, dated November 10, 1969, reversed, on the law, and the complaint dismissed, with costs. The findings of fact below are affirmed. The plaintiff Shelley borrowed a motor vehicle from her neighbor, defendant Ingle, to attend a funeral. Thereafter, plaintiff permitted her nephew, defendant McKenna, to drive the vehicle from Manhattan to Lynbrook, Long Island; during that journey, the vehicle collided with a bus owned by defendant Carrier Bus Corp. and operated by defendant Balazs. Plaintiff, who was in the front seat next to McKenna, sustained injuries for which, upon a jury's verdict, she recovered judgment on the issue of liability against the owner Ingle under section 388 Veh. Traf. of the Vehicle and Traffic Law (formerly § 59). It is our view, since the jury specifically found that McKenna was negligent and that his negligence was the proximate cause of the accident, that section 388 does not permit recovery against the absent owner. This is so despite the admission in Ingle's answer by the failure to deny the allegation that McKenna was operating the vehicle with his consent, express or implied. The fact is that plaintiff was present in the vehicle, and McKenna was under her dominion and control. His negligence was therefore imputed to her and she cannot recover against Ingle (see Gochee v. Wagner, 257 N.Y. 344; Kleinman v. Frank, 34 A.D.2d 121, affd. 28 N.Y.2d 603). Rabin, P.J., Munder, Martuscello and Gulotta, JJ., concur; Shapiro, J., concurs, with the following memorandum: I agree with the dissent of Mr. Justice HOPKINS in Kleinman v. Frank, 34 A.D.2d 121, 124, but in view of the majority opinion in that case which was affirmed by the Court of Appeals ( 28 N.Y.2d 603), I am constrained to concur. The result of a reversal here is to immunize the owner of the vehicle, Ingle, from liability merely because the suit here is directly by the bailee-passenger plaintiff against him. If the plaintiff had sued McKenna, the driver of the automobile, his liability would have been unassailable and the verdict against him would have had to be paid by Ingle's insurer, since McKenna as the operator was an assured under the Ingle liability policy (Vehicle and Traffic Law, § 345). I submit that this fact pattern warrants a narrowing of the scope of Gochee v. Wagner, 257 N.Y. 344, but it is for the Court of Appeals to make such a determination.