Matter of Fiduciary Ins. Co. of Am. v Jackson

Matter of Matter of Fiduciary Ins. Co. of Am. v Jackson 2012 NY Slip Op 07200 Decided on October 25, 2012 Appellate Division, First 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.

Decided on October 25, 2012
Gonzalez, P.J., Moskowitz, Acosta, Freedman, Abdus-Salaam, JJ.
8382N 115405/10

[*1]In re Fiduciary Insurance Company of America, Petitioner-Appellant, Shawnise Tyler, et al., Respondents,

v

Kelly S. Jackson, et al., Respondents, Government Employees Insurance Company, Respondent-Respondent.




Thomas Torto, New York, for appellant.
Montfort, Healy, McGuire & Salley, Garden City (Donald S.
Neuman, Jr. of counsel), for Government Employees Insurance
Company, respondent.

Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered May 10, 2012, which, after a framed-issue hearing, permanently vacated a stay of arbitration and directed the matter to proceed to arbitration, unanimously affirmed, without costs.

"[P]roof of ownership of a motor vehicle creates a rebuttable presumption that the driver was using the vehicle with the owner's permission, express or implied" (Leotta v Plessinger, 8 NY2d 449, 461 [1960]; see Bernard v Mumuni, 22 AD3d 186, 187 [1st Dept 2005], affd 6 NY3d 881 [2006]). This presumption was rebutted by substantial evidence that the subject vehicle was not being operated with the owner's consent. The owner testified that he left the keys on a table in his mother's home with instructions that his mechanic or his cousin would pick it up for repairs. Furthermore, a finding of constructive consent requires a consensual link between the negligent operator and one whose possession of the car was authorized (see Murdza v Zimmerman, 99 NY2d 375, 381 [2003]). Here, there was no evidence showing a consensual link between the owner and his mother on the one hand, and the driver on the other. There is no basis [*2]to disturb the court's finding that the owner's testimony that he did not give the driver permission to use his car was credible (see Leotta, 8 NY2d at 461; Matter of Eagle Ins. Co. v Lucia, 33 AD3d 552, 554-555 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2012

CLERK