Opinion
2012-10-25
In re FIDUCIARY INSURANCE COMPANY OF AMERICA, Petitioner–Appellant, Shawnise Tyler, et al., Respondents, v. Kelly S. Jackson, et al., Respondents, Government Employees Insurance Company, Respondent–Respondent.
Thomas Torto, New York, for appellant. Montfort, Healy, McGuire & Salley, Garden City (Donald S. Neuman, Jr. of counsel), for Government Employees Insurance Company, respondent.
Thomas Torto, New York, for appellant.Montfort, Healy, McGuire & Salley, Garden City (Donald S. Neuman, Jr. of counsel), for Government Employees Insurance Company, respondent.
Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered May 10, 2012, which, after a framed-issue hearing, permanently vacated a stay of arbitration and directed the matter to proceed to arbitration, unanimously affirmed, without costs.
“[P]roof 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, 209 N.Y.S.2d 304, 171 N.E.2d 454 [1960];see Bernard v. Mumuni, 22 A.D.3d 186, 187, 802 N.Y.S.2d 1 [1st Dept. 2005],affd.6 N.Y.3d 881, 817 N.Y.S.2d 210, 850 N.E.2d 25 [2006] ). This presumption was rebutted by substantial evidence that the subject vehicle was not being operated with the owner's consent. The owner testified that he left the keys on a table in his mother's home with instructions that his mechanic or his cousin would pick it up for repairs. Furthermore, a finding of constructive consent requires a consensual link between the negligent operator and one whose possession of the car was authorized ( see Murdza v. Zimmerman, 99 N.Y.2d 375, 381, 756 N.Y.S.2d 505, 786 N.E.2d 440 [2003] ). Here, there was no evidence showing a consensual link between the owner and his mother on the one hand, and the driver on the other. There is no basis to disturb the court's finding that the owner's testimony that he did not give the driver permission to use his car was credible (see Leotta, 8 N.Y.2d at 461, 209 N.Y.S.2d 304, 171 N.E.2d 454;Matter of Eagle Ins. Co. v. Lucia, 33 A.D.3d 552, 554–555, 824 N.Y.S.2d 9 [1st Dept. 2006] ).