Opinion
528 CA 20-01541
08-26-2021
Christopher W. WALKER, Plaintiff-Appellant, v. TOWN OF WEBSTER, et al., Defendants, and David J. Osborn, Defendant-Respondent.
MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-APPELLANT. LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-APPELLANT.
LAW OFFICE OF KEITH D. MILLER, LIVERPOOL (KEITH D. MILLER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint and all cross claims are reinstated against defendant David J. Osborn. Memorandum: In this personal injury action arising from a motor vehicle collision, plaintiff appeals from an order granting the motion of defendant David J. Osborn for summary judgment dismissing the complaint and all cross claims against him. This action arises from an incident in which a vehicle operated by plaintiff was struck by a vehicle operated by defendant Robert J. Buck, while Buck was being pursued by police officers. Insofar as relevant to this appeal, plaintiff commenced this action against Osborn under a theory that he is vicariously liable for plaintiff's injuries pursuant to Vehicle and Traffic Law § 388, and Osborn moved for summary judgment on the ground that he was not an owner of the vehicle within the meaning of the statute because he had purportedly transferred ownership of the vehicle to Buck several months before the collision. We agree with plaintiff that Osborn failed to meet his initial burden on the motion, and therefore we reverse.
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 ... injuries to person or property resulting from negligence in the use or operation of such vehicle ... by any person using or operating the same with the permission, express or implied, of such owner" (see Murdza v. Zimmerman , 99 N.Y.2d 375, 379, 756 N.Y.S.2d 505, 786 N.E.2d 440 [2003] ). The statute further provides that an " ‘owner’ shall be as defined in section one hundred twenty-eight" of the Vehicle and Traffic Law (§ 388 [3] ; see Oscier v. Musty , 138 A.D.3d 1402, 1404, 31 N.Y.S.3d 697 [4th Dept. 2016] ), which in turn states that an owner is a "person, other than a lien holder, having the property in or title to a vehicle or vessel" (§ 128; see Monette v. Trummer , 105 A.D.3d 1328, 1329, 964 N.Y.S.2d 345 [4th Dept. 2013], affd 22 N.Y.3d 944, 976 N.Y.S.2d 696, 999 N.E.2d 174 [2013] ). Generally, "ownership is in the registered owner of the vehicle or one holding the documents of title[,] but a party may rebut the inference that arises from [those] circumstances" ( Fulater v. Palmer's Granite Garage, Inc. , 90 A.D.2d 685, 685, 456 N.Y.S.2d 289 [4th Dept. 1982], appeal dismissed 58 N.Y.2d 826, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1983] ; see § 2108 [c]; see also Zegarowicz v. Ripatti , 77 A.D.3d 650, 653, 911 N.Y.S.2d 69 [2d Dept. 2010] ).
Here, in support of his motion, Osborn submitted evidence establishing that the vehicle at issue was registered to Buck, but also submitted a New York State Department of Motor Vehicles record establishing that the vehicle was titled to Osborn. Consequently, because "there is conflicting evidence of ownership, the issue must be resolved by a trier of fact" ( Martin v. Lancer Ins. Co. , 133 A.D.3d 1219, 1220, 19 N.Y.S.3d 638 [4th Dept. 2015] ; see Sosnowski v. Kolovas , 127 A.D.2d 756, 758, 512 N.Y.S.2d 148 [2d Dept. 1987] ; Fulater , 90 A.D.2d at 685, 456 N.Y.S.2d 289 ). Thus, Osborn failed to "make a prima facie showing of entitlement to judgment as a matter of law [by] tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ) and, because he did not meet his initial burden on the motion, "the burden never shifted to [plaintiff], and denial of the motion was required ‘regardless of the sufficiency of the opposing papers’ " ( Scruton v. Acro-Fab Ltd. , 144 A.D.3d 1502, 1503, 40 N.Y.S.3d 864 [4th Dept. 2016], quoting Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; see Winegrad , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).