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Liberty Mutual Insurance v. General Accident Insurance

277 A.D.2d 981 Court N.Y. App. Div. Decision date 2000-11-13 Docket Appeal No. 1 English

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p. 981
Liberty Mutual Insurance Company, Appellant, v General Accident Insurance Company et al., Respondents.
(Appeal No. 1.)
[716 NYS2d 515]

—Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly denied plaintiff’s motion for summary judgment and granted the cross motion of defendants General Accident Insurance Company and Marshall S. Toole for summary judgment. “It is well settled that Vehicle and Traffic Law § 388 (1) ‘creates a strong presumption that the driver of a vehicle is operating it with the owner’s permission and consent, express or implied, and

p. 982
that presumption continues until rebutted by substantial evidence to the contrary1 ” (Leonard v Karlewicz, 215 AD2d 973 , 974, quoting Greater N. Y. Mut. Ins. Co. v Clark, 205 AD2d 857 , 858, lv denied 84 NY2d 807 ). The court properly determined that the presumption was rebutted as a matter of law based upon uncontradicted evidence that defendant Mary Louise Little did not have the express permission of Toole to operate his vehicle at the time of the accident, and the absence of competent evidence from which Toole’s permission or authority could be inferred (see, Barrett v McNulty, 27 NY2d 928 , 929; Leonard v Karlewicz, supra, at 975-976 ; State Farm Mut. Auto. Ins. v White, 175 AD2d 122 , 123).

Plaintiffs first motion seeking leave to renew or reargue is not based upon new facts unavailable at the time of the original motion and is therefore a motion for reargument. The denial of that motion is not appealable (see, Empire Ins. Co. v Food City, 167 AD2d 983 , 984). The second motion seeking the same relief is supported by new evidence and is properly characterized as a motion for renewal (see, Perla Assocs. v Ginsberg, 256 AD2d 303 ). The court properly denied the motion, however, because the new evidence, a self-serving affidavit by Little contradicting her earlier accounts, cannot be used by plaintiff to create an issue of fact (see, Ferber v Farm Family Cas. Ins. Co., 272 AD2d 747 ; Zylinski v Garito Contr., 268 AD2d 427 ). (Appeal from Judgment of Supreme Court, Erie County, Notaro, J. — Declaratory Judgment.) Present — Pigott, Jr., P. J., Green, Hayes, Scudder and Kehoe, JJ.

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