The opinion of the court was delivered by: MCCURN
MEMORANDUM-DECISION AND ORDER
The Court has before it a motion by plaintiff McClaney and a motion by defendants Utility Equipment Leasing Corp. ("Utility") and Albert Molchan for partial summary judgment, declaring that defendant Gallagher Equipment Leasing Company ("Gallagher") is an "owner" of a vehicle pursuant to NY VEHICLE AND TRAFFIC LAW §§ 388 and 128. For the reasons below, those motions are denied.
This action arose from an accident which occurred in Albany, New York on December 22, 1981, when a truck driven by Albert J. Molchan struck a Niagara Mohawk Power Corporation ("NiMo") building, causing an explosion within the building which injured the plaintiff. The truck, owned by Utility, had been leased to Gallagher, which in turn had leased it to NiMo. Gallagher retained Reuben-Siegfried Chauffers, Inc., to retrieve the truck from NiMo's premises, and Molchan, an agent or employee of Reuben-Siegfried, was in the process of retrieving the truck when the accident occurred.
With respect to the preliminary choice-of-law question, we note that the plaintiff is a resident of New York and the accident occurred in New York. The courts of this state would apply the New York Vehicle and Traffic Law at least insofar as it bears on issue of vicarious liability. See, Himes v. Stalker, 99 Misc.2d 610, 416 N.Y.S.2d 986 (S. Ct., Cattaraugus Cty. 1979); see also, Neumeier v. Kuehner, 31 N.Y.2d 121, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972); Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963); Restatement (Second) of Conflict of Laws § 174 (1971). This Court, sitting in diversity, must do the same. Klaxon v. Stentor Electric Mfr. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941).
NY VEHICLE AND TRAFFIC LAW § 388 provides as follows:
§ 388. Negligence in use or operation of vehicle attributable to owner
1. 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 permission, express or implied, of such owner. . . .
3. As used in this section, "owner" shall be defined in section one hundred twenty-eight of this chapter and their liability under this section shall be joint and several.
The definition of "owner" in § 128, which is the focal point of these motions, states in its entirety:
A person, other than a lien holder, having the property in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person and also includes any lessee or bailee of a motor vehicle or motorcycle, having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days.
It is the movants' contention that there is no genuine issue as to any material fact that would enable Gallagher to avoid being characterized as an "owner" within the meaning of § 128.
The pleadings, depositions, and affidavits before the Court establish the following. Both Gallagher and Utility have been in the business of leasing equipment and vehicles. The two corporations entered into an "Agent Agreement" in January, 1979, whereby Gallagher became an agent of Utility "on a non-exclusive basis" for the purpose of leasing equipment in certain states including New York. The agreement provided that all such leases would be subject to the approval of Utility as to lessee and terms; that Gallagher would be paid on a commission basis; that Gallagher would maintain a place of business for leasing and renting and a facility for servicing equipment in its territory. This agreement was in effect on December 22, 1981, the day of the accident.
Gallagher and Utility also entered into a lease, entitled "Rental Agreement No. 6205" and dated May 7, 1981, whereby Utility leased to Gallagher a Zeligson Hi-Ranger truck. It was the clear understanding of the parties that the vehicle was to be re-leased by Gallagher, and the Rental agreement expressly provided for vehicle use by ...