Appeal from an order of the Supreme Court, Cattaraugus County (Michael L. Nenno, A.J.), entered September 29, 2011 in a personal injury action.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Released on April 26, 2013
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ.
The order denied the motion of defendant Jim Ball Pontiac-Buick-GMC, Inc. for summary judgment dismissing the complaint and all cross claims against it.
It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the motion is granted, and the complaint and all cross claims against defendant Jim Ball Pontiac-Buick-GMC, Inc. are dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Robert K. Monette (plaintiff) when a parked vehicle in which he was seated was rear-ended by a vehicle owned by defendant Jesse L. Ball and operated by defendant Christina L. Trummer. Trummer had borrowed the vehicle from her boyfriend, defendant David Leederman, who in turn had been loaned the vehicle by Jim Ball Pontiac-Buick-GMC, Inc. (defendant) while defendant was servicing Leederman's pickup truck. In the complaint, as amplified by the bill of particulars, plaintiffs assert, inter alia, that defendant is vicariously liable under Vehicle and Traffic Law § 388 as a co-owner of the vehicle involved in the accident. Defendant appeals from an order denying its motion for summary judgment dismissing the complaint and all cross claims against it. We reverse.
On the date of the accident, Leederman brought his pickup truck to defendant for servicing, and defendant agreed to loan Leederman a vehicle while it repaired his truck. Defendant owned four or five "loaner vehicles," but those vehicles were all with other customers at that time. After Leederman was unable to rent a vehicle from a nearby rental company, defendant's chief financial officer asked Jesse Ball, an employee of defendant and the daughter of defendant's owner, James Ball, whether she would be willing to permit Leederman to use her vehicle while his truck was being serviced. She agreed, and Leederman signed a "rental agreement" with defendant. Later that evening, Leederman allowed Trummer to drive Jesse Ball's vehicle to work, whereupon the subject accident took place.
Pursuant to Vehicle and Traffic Law § 388, an owner of a motor vehicle is vicariously liable for the negligent use or operation of such vehicle by anyone operating the vehicle with the owner's express or implied permission (see § 388 ; A Dan Jiang v Jin-Liang Liu, 97 AD3d 707, 708; Vyrtle Trucking Corp. v Browne, 93 AD3d 716, 717; Mikelinich v Caliandro, 87 AD3d 99, 102). The term "owner" is defined as "[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 . . . having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days" (§ 128; see § 388 ).
We agree with defendant that it established as a matter of law that it was not the owner of the vehicle involved in the motor vehicle accident at issue, and that plaintiffs failed to raise a triable issue of fact with respect to ownership of that vehicle. Plaintiffs concede that Jesse Ball, not defendant, was the titleholder of the vehicle (see Zegarowicz v Ripatti, 77 AD3d 650, 652; Them-Tuck Chung v Pinto, 26 AD3d 428, 429). Plaintiffs further concede that defendant did not "hav[e] the exclusive use [of the vehicle], under a lease or otherwise, for a period greater than thirty days" (Vehicle and Traffic Law § 128; see A Dan Jiang, 97 AD3d at 908; Progressive Halcyon Ins. Co. v Giacometti, 72 AD3d 1503, 1506). Plaintiffs contend, however, that defendant possessed an unspecified "property interest" in the vehicle, thus rendering it a "co-owner" within the ambit of Vehicle and Traffic Law § 388. We reject that contention.
The record establishes that Jesse Ball leased the vehicle at issue from GMAC. Although Jesse Ball was an employee of defendant, the vehicle was her personal vehicle. Jesse Ball made the lease payments on the vehicle and paid for the insurance on the vehicle, which was insured under a policy separate from that of defendant's policy. By contrast, defendant's loaner vehicles were owned by defendant and insured under a policy of insurance issued to defendant. Further, the record reflects that Jesse Ball's vehicle was loaned to Leederman under unusual circumstances. After purchasing his pickup truck from defendant, Leederman discovered a number of problems with the truck. When Leederman made an appointment to repair the truck, defendant assured him that it would provide him with a replacement vehicle while his truck was being repaired. At the time Leederman dropped off his truck, however, none of defendant's loaner vehicles was available, and efforts to secure a rental vehicle for Leederman were likewise unsuccessful. Only then did defendant approach Jesse Ball for permission to use her vehicle, which she granted. Notably, Jesse Ball testified that she had not previously been asked to loan her vehicle to a customer. We thus conclude that there is no evidence that Jesse Ball and defendant shared ownership of the vehicle for purposes of Vehicle and Traffic Law § 388.
Although the dissent concludes that there are issues of fact "regarding whether defendant had sufficient use and possession' of the vehicle to be considered a co-owner" with Jesse Ball, Vehicle and Traffic Law § 388 defines the term "owner" as "a person entitled to the use and possession of a vehicle . . . subject to a security interest in another person" (§ 128 [emphasis added]). The record establishes that it was Jesse Ball, not defendant, who as the lessee of the vehicle was entitled to its use and possession subject to GMAC's security interest. Further, there ...