State Farm Fire & Casualty Company, as subrogee of Helen Indiere, respondent,
Daniel Sajewski, Sr., appellant, et al., defendant. Index No. 38388/12
Mulholland Minion Davey McNiff & Beyrer, Williston Park,
NY (Robert L. Ryan and David A. Verni of counsel), for
Offices of Stuart D. Markowitz, P.C., Jericho, NY, for
RANDALL T. ENG, P.J. REINALDO E. RIVERA RUTH C. BALKIN BETSY
DECISION & ORDER
subrogation action to recover insurance benefits paid to the
plaintiff's insured, the defendant Daniel Sajewski, Sr.,
appeals from an order of the Supreme Court, Suffolk County
(Molia, J.), dated August 6, 2015, which denied his motion
for summary judgment dismissing the complaint insofar as
asserted against him.
that the order is affirmed, with costs.
28, 2012, the defendant Daniel Sajewski, Jr. (hereinafter
Daniel), drove a 2003 Mercedes vehicle owned by his father,
the defendant Daniel Sajewski, Sr. (hereinafter the
appellant), into the residence of Helen Indiere. According to
Daniel's deposition testimony, he drove the vehicle
through a "picture window" in the living room area
of Indiere's house, continued through the back wall of
the house, and eventually came into contact with a tree. As a
result, Indiere sustained extensive damage to her property.
plaintiff, Indiere's insurer, allegedly paid Indiere the
sum of $180, 889.20 pursuant to an existing policy of
insurance. Thereafter, the plaintiff, as Indiere's
subrogee, commenced this action against the appellant and
Daniel seeking to recover the sum of money it had paid
Indiere under the policy. The appellant moved for summary
judgment dismissing the complaint insofar as asserted against
him on the ground that Daniel was operating the vehicle
without his permission. The Supreme Court denied the
and Traffic Law § 388(1) "makes every owner of a
vehicle liable for injuries resulting from negligence in the
use or operation of such vehicle... by any person using or
operating the same with the permission, express or implied,
of such owner'" (Murdza v Zimmerman, 99
N.Y.2d 375, 379, quoting Vehicle and Traffic Law §
388). Under this statute, there is a presumption that the
operator of a vehicle operates it with the owner's
permission (see Murdza v Zimmerman, 99 N.Y.2d at
380; Murphy v Carnesi, 30 A.D.3d 570, 571;
Bernard v Mumuni, 22 A.D.3d 186, affd 6
N.Y.3d 881). The presumption may be rebutted by substantial
evidence that the owner did not give the operator consent
(see Murdza v Zimmerman, 99 N.Y.2d at 380;
Murphy v Carnesi, 30 A.D.3d at 571).
motion for summary judgment, the appellant had the burden of
demonstrating his prima facie entitlement to judgment as a
matter of law (see Zuckerman v City of New York, 49
N.Y.2d 557, 562). Thus, to obtain summary judgment on his
defense that Daniel operated the vehicle without his consent,
the appellant was required to come forward with substantial
evidence establishing that defense (see Murphy v
Carnesi, 30 A.D.3d at 571).
uncontradicted testimony of a vehicle owner that the vehicle
was operated without his or her permission, does not, by
itself, overcome the presumption of permissive use"
(Amex Assur. Co. v Kulka, 67 A.D.3d 614, 615
[internal quotation marks omitted]; see Ellis v
Witsell, 114 A.D.3d 636, 637). Additionally, " [i]f
the evidence produced to show that no permission has been
given has been contradicted or, because of improbability,
interest of the witnesses or other weakness, may reasonably
be disregarded by the jury, its weight lies with the
jury'" (Country-Wide Ins. Co. v National R.R.
Passenger Corp., 6 N.Y.3d 172, 177, quoting St.
Andrassy v Mooney, 262 NY 368, 372).
the rule is not absolute or invariable, in most cases
uncontradicted disavowals of permission by both the owner of
the vehicle and the driver will constitute substantial
evidence negating permissive use and entitle the owner to
summary judgment" (Vinueza v Tarar, 100 A.D.3d
742, 743). However, "disavowals by both the owner and
the driver, without more, should not automatically result in
summary judgment for the owner" (Country-Wide Ins.
Co. v National R.R. Passenger Corp., 6 N.Y.3d at 178).
Ultimately, "whether summary judgment is warranted
depends on the strength and plausibility of the disavowals
[of permission], and whether they leave room for doubts that
are best left for the jury" (id. at 179).
the circumstances of this case, the Supreme Court properly
determined that the appellant failed to sufficiently rebut
the strong presumption pursuant to Vehicle and Traffic Law
§ 388 that Daniel was operating the vehicle with his
permission (see Amex Assur. Co. v Kulka, 67 A.D.3d
at 615; Matter of Travelers Prop. Cas. Corp. v
Maxwill-Singleton, 300 A.D.2d 225, 226). Daniel had
access to the appellant's residence. Further, the key to
the vehicle was kept in a "central location" inside
a bin located in the kitchen of the appellant's
residence. Additionally, on previous occasions, Daniel had
been permitted by the appellant to drive other vehicles owned
by the appellant. Accordingly, the Supreme Court properly
concluded that the appellant failed to establish his ...