Opinion
7094-04.
Decided January 5, 2005.
MARTIN, FALLON MULLE, ESQS., Attorneys for Petitioner.
Richard C. Mulle, Esq., Huntington, New York.
FRANK J. LAINE, P.C., Mineola, New York, Attorneys for Respondent Susan Roach.
MELITO ADOLFSEN, ESQS., Zurich American Insurance Co. and Daniel and Susan DelGiorno, New York, New York, Attorneys for Respondents.
ORDERED that the petition for an order pursuant to CPLR § 7503 (c) permanently staying arbitration is denied.
In this case arising from a motor vehicle accident on September 23, 2003, petitioner seeks a permanent stay of arbitration asserting that the presumption that a vehicle is operated with the consent of the owner pursuant to Vehicle and Traffic Law § 388 has not been overcome by "substantial evidence to the contrary." At the hearing the Court heard testimony from Daniel Delgiorno the owner of the Excelsior Group (the titled owner of the subject vehicle, Justin Delgiornio, the son of Daniel Delgiorno, Frank Tartaglia, and Suffolk County Police Department Detective Robert A. Mc Gee (Shield No. 4450).
Vehicle and Traffic Law § 388(1) provides, in relevant part, that "Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner." Where the offending vehicle is stolen at the time of the accident the owner of the stolen vehicle is not responsible for the resulting damages. Government Employees Ins. Co. v. Burns Ford, Inc., 261 AD2d 508, 690 N.Y.S.2d 613(2nd Dep't, 1999). "The uninsured motorist indorsement of an insurance policy does not operate unless and until it has been established that there was no insurance coverage on the offending vehicle on the date of the accident." NY Cent. Mut. Fire Ins. Co. v. Julien, 298 AD2d 587, 749 N.Y.S.2d 73 (2nd Dep't, 2002). The law presumes that the owner of a vehicle has consented to its use by any driver of said vehicle. Respondent owner of the vehicle asserts that the driver of the vehicle did not have permission to use the vehicle, that he filed a stolen vehicle report, and that therefore he is not liable for injuries sustained by respondent Roach in the accident involving the vehicle. Id.
An evidentiary hearing is necessary when the question of whether the driver of a vehicle is involved in a motor vehicle accident was operating the vehicle with the owners permission so as to render the owner and his insurer liable for damages and to defeat a claim that the vehicle was uninsured. The Court must determine whether the presumption that the operator of a vehicle has the owner's consent has been "rebutted by substantial evidence to the contrary". Matter of Allstate Indem. Co v. Nelson, 285 AD2d 545 (2nd Dep't, 2001); see, Vehicle and Traffic Law § 388(1); see also, Matter of State Farm Mutual Automobile Insurance Co. v. Russell, 1 AD3d 371 (2nd Dep't, 2003). This decision follows the hearing held November 4, 2004.
At the hearing the Court heard testimony from Daniel Delgiorno the owner of the Excelsior Group (the titled owner of the subject vehicle), Justin Delgiornio, the son of Daniel Delgiorno, Frank Tartaglia, and Suffolk County Police Department Detective Robert A. Mc Gee (Shield #4450).
On September 23, 2003, with his father's permission Justin Delgiornio drove the Chevy Avalanche owned by the Excelsior Group, Ltd to school. He was approached by a fellow student, Anthony Tufano, and asked whether Anthony could sit in the Chevy Avalanche until his ride picked him up. Justin Delgiornio agreed to this request and gave the keys to Anthony Tufano for the limited purpose of allowing him to sit in the car until his "ride" picked him up from the school parking lot. Later in the day Justin discovered that the vehicle was no longer in the parking lot and that the keys had not been returned to school personnel as promised by Anthony. Frank Tartaglia testified that he entered the Chevy Avalanche with Anthony and they drove off to go to another student's house. On the way they were involved in a motor vehicle accident. While Frank claimed that he was not the driver and claimed that he and Anthony had permission to drive the vehicle, he was charged, upon his admission to police of unauthorized use of the vehicle and leaving the scene of the accident. Mr. Delgiorno filed a stolen vehicle report with the police.
The transfer of possession of the keys to a vehicle does not alone establish permission to drive the vehicle absent the grant of express or implied permission to the holder of the keys to drive the vehicle. Where the owner of a vehicle gave the keys to another to prevent himself from driving under the influence of alchol, the fact that the owner did not give express or implied permission to drive the vehicle and was "not aware that his car was gone, was not sure who had taken it and was upset that someone had taken it" and did not remember giving the keys to the driver involved in the subsequent accident, these facts were held sufficient to rebut the preseumption and establish a lack of permission of the holder of the keys to drive the owner's vehicle. NY Cent. Mut. Fire Ins. Co. v. Nationwide Mut. Ins. Co., 307 AD2d 449, 761 N.Y.S.2d 730, (3rd Dep't, 2003). Submission of an affidavit by the owner and other documentary evidence demonstrating that the vehicle was stolen at the time of the accident has been held sufficient to defeat a summary judgment motion on the issue of liability. Adamson v. Evans, 283 AD2d 527, 527-528 (2nd Dep't, 2001). Where there is "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," the presumption of consent was rebutted as a matter of law". Allstate Indem. Co. v. Nelson, 285 AD2d 545, 728 N.Y.S.2d 82 (2nd Dep't, 2001), see also State Farm Mut. Auto. Ins. v. White, 175 AD2d 122, 572 N.Y.S.2d 21(2nd Dep't, 1991). Providing keys to a car to allow for the cleaning of the interior of the car does not imply permission to drive the vehicle. Clarke v. Longo, 132 Misc 2d 39, 503 N.Y.S.2d 219; (Sup.Ct., Nassau Co., 1986).
The Court finds that the presumption that the operator of a vehicle has the owner's consent has been "rebutted by substantial evidence to the contrary" ( Matter of Allstate Indem. Co v. Nelson, supra, Matter of State Farm Mutual Automobile Insurance Co. v. Russell, supra).