SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 30, 1969
MOSES BONDO, AN INFANT, BY ISIDOR BONDO, HIS FATHER AND GUARDIAN, ET AL., RESPONDENTS,
PHILIP ZIMMERMAN, RESPONDENT, AND LESTER MATTOX, APPELLANT
In an action to recover damages for personal injuries, medical expenses, etc., the appeal is from an interlocutory judgment of the Supreme Court, Kings County, dated June 6, 1968 and entered upon a jury verdict after a separate prior trial on the issue of whether respondent Zimmerman's operation of the motor vehicle involved in the accident was with the consent of appellant, the owner.
Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur.
In our opinion, the jury was warranted in rejecting appellant's trial testimony; and in consequence the statutory presumption (Vehicle and Traffic Law, § 388, subd. 1) was not overcome. (Cf. Smyth v. Pellegrino, 28 A.D.2d 537; Reyes v. Sternberg, 27 A.D.2d 828.)
Order affirmed, with costs to respondent Zimmerman.
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