Headley v. Tessler — 267 A.D.2d 428

Majority

p. 428

Michael Headley, Appellant, v Mendel Tessler et al., Respondents.

[700 NYS2d 849]

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Leone, J.), dated February 25, 1999, which, upon the granting of the defendants’ motion for judgment as a matter of law, made at the close of the evidence, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

Vehicle and Traffic Law § 388 (1) imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his or her permission. This section gives rise to a presumption that the vehicle is being operated with the owner’s consent, but the presumption may be rebutted by substantial evidence to the contrary (see, Leotta v Plessinger, 8 NY2d 449 ; State Farm Mut. Auto. Ins. v White, 175 AD2d 122 ; Guerra v Kings Plaza Leasing Corp., 172 AD2d 583 ). Upon this record we conclude that the presumption of consent was rebutted as a matter of law inasmuch as “[t]here was uncontradicted evidence that the * * * driver did not have express permission to

p. 429

operate the motor vehicle involved in the accident, and there was no competent evidence from which permission or authority could be inferred” (Barrett v McNulty, 27 NY2d 928 , 929). S. Miller, J. P., O’Brien, McGinity and Feuerstein, JJ., concur.

Cases cited

Leotta v. Plessinger 8 NY2d 449 N.Y. 1960-12-01 p. 428
State Farm Mutual Automobile Insurance v. White 175 AD2d 122 N.Y. App. Div. 1991-07-01 p. 428
Guerra v. Kings Plaza Leasing Corp. 172 AD2d 583 N.Y. App. Div. 1991-04-08 p. 428
Barrett v. McNulty 27 NY2d 928 N.Y. 1970-12-09 at 929 p. 429