Opinion
Index No. EF008760-2018
02-23-2021
BRENDA WILLIAMS, as Administratrix of the Estate of GEORGE W. WILLIAMS III a/k/a GEORGE WESLEY WILLIAMS III, Deceased, Plaintiff, v. LUKE DARDIS, KENNETH DARDIS and CYNTHIA DARDIS, Defendants
Unpublished Opinion
Motion Date: December 23, 2020
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
CATHERINE M. BARTLETT, JUDGE
To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
The following papers numbered 1 to 5 were read on the motion of defendants Kenneth Dardis and Cynthia Dardis for summary judgment:
Notice of Motion - Affirmation / Exhibits - Memorandum............................1-3
Affirmation in Opposition / Exhibit .............................................. 4
Reply Affirmation............................................................ 5
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
This action arises out of a motor vehicle accident that occurred on October 7, 2017. Defendant Luke Dardis, the son of defendants Kenneth and Cynthia Dardis, drove his mother's automobile to a campground in Mamakating, New York, where he spent some time drinking tequila and beer with his friend, decedent George Williams III, and Mr. Williams' father. Luke Dardis and George Williams III drove from the campground in Cynthia Dardis's automobile. Mr. Williams died when the vehicle left the roadway and collided with a tree.
The Complaint alleges that Kenneth and Cynthia Dardis are (1) vicariously liable for Luke Dardis's negligence pursuant to Vehicle and Traffic Law ("VTL") §388, and (2) directly liable for alleged recklessness and/or gross negligence. Kenneth and Cynthia Dardis move for summary judgment dismissing all claims against them. Inasmuch as Kenneth Dardis was not an owner of the vehicle in question, he cannot be held vicariously liable pursuant to VTL §388. Moreover, Plaintiff has not contested the clearly meritorious motion to dismiss the claims of recklessness and gross negligence. Accordingly, the sole matter in dispute is Cynthia Dardis's vicarious liability pursuant to VTL §388.
Vehicle and Traffic Law §388(1) "makes every owner of a vehicle liable for injuries resulting from negligence 'in the use or operation of such vehicle...by any person using or operating the same with permission, express or implied, of such owner.'" Murzda v. Zimmerman, 99 N.Y.2d 375, 379 (2003) (quoting Vehicle and Traffic Law §388[1]). The Murzda Court continued:
Proof of consent can, however, often depend on the testimony of a hostile party - the owner. Recognizing this, we have 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" (Leotta v. Plessinger, 8 N.Y.2d 449, 461...[1960]). Once the plaintiff meets its initial burden of establishing ownership, "a logical inference of lawful operation with the owner's consent may be drawn from the possession of the operator" (see St. Andrassy v. Mooney, 262 NY 368, 371 ...[1933]).
This presumption may be rebutted, however, by substantial evidence sufficient to show that a vehicle was not operated with the owner's consent (see Leotta, 8 N.Y.2d at 461...).Murzda v. Zimmerman, supra, 99 N.Y.2d at 380. See also, State Farm Fire & Cos. Co. v. Sajewski, 150 A.D.3d 1297 (2d Dept. 2017); Fuentes v. Virgil, 119 A.D.3d 522, 523 (2d Dept. 2014).
In Country-Wide Ins. Co. v. National R.R. Passenger Corp., 6 N.Y.3d 172 (2006), the Court of Appeals articulated the principles applicable to summary judgment motions in VTL §388 cases:
[Uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner's permission will not necessarily warrant a court in awarding summary judgment for the owner. In most circumstances... they will, but not as an absolute or invariable rule. (Id., 6 N.Y.3d at 177)
If the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury. (Id., quoting St. Andrassy v. Mooney, 262 NY 368, 372 [1933])
[Summary judgment has been granted where] both the owner and the driver disclaimed consent, and the plaintiff produced no competent evidence from which consent could be inferred. As a corollary, however, disavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner. Where the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to ajury. (Id., at 178)
[W]hether summary judgment is warranted depends on the strength and plausibility of the disavowals, and whether they leave room for doubts that are best left for the jury. (Id., at 179)
While...New York law allows [the owner's failure to report the unauthorized use of her vehicle to a law enforcement agency] to be considered, it should not alone defeat a grant of summary judgment to the owner, where...me proof against permission is strong and uncontested, with nothing (apart from speculation) to cast doubt on its plausibility. (Id., at 180)See also, State Farm Fire & Cos. Co. v. Sajewski, supra, 150 A.D.3d at 1298; Marino v. City of New York, 95 A.D.3d 840, 841 (2d Dept. 2012); Panteleon v. Amaya, 85 A.D.3d 993, 995 (2d Dept. 2011).
Here, the motion for summary judgment is premised upon the testimony of owner Cynthia Dardis and operator Luke Dardis, as well as that of Kenneth Dardis, that Luke Dardis was not permitted to use Cynthia's automobile and die keys were hidden in different locations around the house to prevent him from taking the car. However:
(1) This testimony was not uncontradicted. Decedent George Williams' father testified that Luke Dardis said at the campground that his mother had let him take the car.
(2) Neither Cynthia nor Kenneth reported the alleged unauthorized use of the vehicle.
(3) There were significant discrepancies in the testimony as to (a) the reason why Luke Dardis was not allowed to use Cynthia's car, and (b) where the keys were hidden.
Since there is evidence contradicting the disavowals of permission, since there was no report of the alleged unauthorized use to corroborate those disavowals, and since, in the Court's view, those disavowals might reasonably be disregarded by the jury based on those factors together with the cited discrepancies in the testimony and the interest of the three Dardis family members, the Court concludes that the evidence leaves room for doubts that are best resolved by the jury.
It is therefore
ORDERED, that the defendant Kenneth Dardis's motion for summary judgment is granted in its entirety, and the Plaintiffs complaint as against said Defendant is dismissed, and it is further
ORDERED, that the defendant Cynthia Dardis's motion for summary judgment is granted in part, and the claims against her for recklessness and gross negligence are dismissed, and it is further
ORDERED, that defendant Cynthia Dardis's motion, insofar as it is addressed to the issue of her vicarious liability pursuant to VTL §388, is denied.
The foregoing constitutes the decision and order of the Court.