Hajny v Fernicola

[*1] Hajny v Fernicola 2005 NY Slip Op 50266(U) Decided on March 3, 2005 District Court Of Nassau County, Fourth District Fairgrieve, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 3, 2005
District Court of Nassau County, Fourth District

JAMES HAJNY, Plaintiff(s)

against

ANNAMARIE FERNICOLA VINNIE FERNICOLA, Defendant(s)



SCF 3786/04



James Hajny, pro se

Annamarie Fernicola, pro se

Vinnie Fernicola, pro se

Scott Fairgrieve, J.

DECISION

NATURE OF CLAIM

This is a small claims action to recover the cost of repairs to plaintiff James Hajny's vehicle, a 2002 Toyota Van. Said damages are the result of an automobile incident on June 13, 2004 with defendant, Vinnie Fernicola (driver of the vehicle) and Annamarie Fernicola (alleged owner of said vehicle). Defendants admit that the insurance on their vehicle had been cancelled prior to the accident. Consequently, the defendants will be personally liable if they are found negligent. The two estimates for repair of plaintiff's vehicle each exceed the jurisdictional limit of the small claims part of this Court. Plaintiff has chosen to reduce his claim to the jurisdictional limit.

FACTS OF CASE

The Court credits plaintiff's testimony that the defendant driver Vinnie Fernicola caused the accident by causing his vehicle to strike the rear of the plaintiff's vehicle while it was turning into the parking lot off California Place South, located in Island Park. The Court further credits plaintiff's testimony that he had a signal on at the time of the accident. The defendant driver admitted to plaintiff that he didn't see the plaintiff's vehicle when he rear ended it. The Court rejects the defendant driver's version that the plaintiff pulled out from an illegal parking area into the path of defendant.

The evidence further demonstrates that the defendant Vinnie Fernicola agreed to fully pay for the repairs to the plaintiff's vehicle at the body shop he was familiar with. However, even though the plaintiff took his vehicle to the body shop chosen by defendant Vinnie Fernicola for repairs, defendant Vinnie Fernicola failed to pay for same and failed to have the vehicle repaired. [*2]

The defendant Annamarie Fernicola testified that she was not the owner of the vehicle at the time of the accident and requested the Court to dismiss the action against her. The defendant Annamarie Fernicola testified that on April 2, 2000, she surrendered the plate BKM4709 for the 2000 Ford, together with the registration to the New York State Department of Motor Vehicles. The receipt from the Department of Motor Vehicles confirms that Annamarie Fernicola turned in her plates. However, Mr. Fernicola testified that she only turned in one plate because she didn't know the location of the other plate. She testified that she didn't remember whether the Department of Motor Vehicles questioned the whereabouts of the other plate.

As a backdrop to this situation, the defendants were going through a divorce with orders of protection in effect.

The defendant Vinnie Fernicola took possession of the 2000 vehicle for a few months before the accident and operated same. Annamarie Fernicola didn't attempt to seize the vehicle back because her husband would only take the vehicle again. She testified that they both owned the 2000 vehicle at the time of the accident. There was a loan outstanding on the 2000 vehicle with Chase Manhattan for which they were both liable.

The defendant Vinnie Fernicola testified that at the time of the accident, there was one plate on the back of the vehicle, probably plate number BMK4709. There was no plate on the front.

DECISION

Defendant Annamarie Fernicola contends that she can't be held liable because she turned in one license plate to the Department of Motor Vehicles on April 2, 2004 and surrendered her registration. The defendant Annamarie Fernicola also permitted the insurance to lapse on the vehicle.

The Court rejects defendant Annamarie Fernicola's arguments that she is not liable as an owner pursuant to Vehicle and Traffic Law § 388. The evidence demonstrates that defendant Annamarie Fernicola had full knowledge that defendant Vinnie Fernicola was using the vehicle at and before the time of the accident and did nothing to prevent this situation. Her claim that the defendant Vinnie Fernicola would take back the vehicle if she took control is without merit. The fact that Annamarie Fernicola turned in one plate and surrendered the registration doesn't relieve her of liability where the vehicle was being used, with her full knowledge, by Vinnie Fernicola. The police report lists her as the owner of the vehicle with the plate number BKM4709. The evidence shows that defendant Annamarie Fernicola failed to exercise proper control over the vehicle and failed to dispose of same in a proper manner. By taking control of the vehicle, this would have allowed her to take possession of the second license plate and return it to the Department of Motor Vehicles.

A case bearing significant similarity to the case at bar is Morales v. Ferrara, 1/24/94 N.Y.L.J., p. 27, col. 4. (Civ. Ct., NY County 1994). In Morales, the defendant Patricia Cea moved for summary judgment on the grounds that she was not the owner of the vehicle at the time of the [*3]accident for purposes of VTL Sec. 388. In support of the motion for summary judgment, defendant Patricia Cea argued that she didn't own the vehicle, cancelled the insurance and returned one available license plate to DMV pursuant to VTL Sec. 318 "thereby divesting herself of any liability resulting from operation of the vehicle". The court denied the motion for summary judgment because: It is undisputed that the unsurrendered license plate, admittedly the property of Ms. Cea, was upon the car involved in the accident. Despite having surrendered one of the plates, Ms. Cea clearly could be estopped from denying ownership or control of the vehicle in this action if it is established that she permitted the other license plate to remain on or to be placed back on the vehicle prior to the accident [see, Phoenix Insurance Company v. Guthiel, 2 NY2d 584 (1957); Dairylea Cooperative, Inc. v. Rossal, 64 NY2d 1 (1984); Shuba v. Greendonner, 271 NY 189 (1930); Berger v. Charles Schatz, Inc., 26 AD2d 551 (2d Dept. 1966); Morgan v. Termine, 2 Misc2d 109 (Sup. Ct. 1956)]. "it [is] for the jury to determine whether the license plates were removed and surreptitiously replaced" [Berger v. Schatz, supra ]. See also, Mitchell v. Auto Buyers Inc., 43 AD2d 830 (2d Dept. 1974). Similarly, if the jury concluded that Ms. Cea maintained control over the vehicle prior to the accident and permitted its use by the allegedly negligent operator, she would be estopped from denying responsibility for the accident [see, United Services Automobile Association v. Spyres, 34 AD2d 181 (4th Dept. 1970); Morgan v. Termine, supra ].

In State Farm Mutual Automobile Insurance Company v. Huther, 38 Misc2d 346, 238 NYS2d 176 (County Ct. Oneida 1963) aff'd 22 A.D. 747, 253 NYS2d 727 (4th Dep't 1964), plaintiff brought a negligence action for property damage against defendant Carol Huther who allegedly was liable under VTL Sec. 388 as the owner of the vehicle. The evidence showed that the defendant Carol Huther gave implied permission to the driver Robert Bachle to drive the vehicle. The Motor Vehicle Department revoked her registration because of a false statement regarding her previous license and ordered her to surrender her plates which she did. The vehicle continued to be operated by Bachle, and on the date of the accident, with plates from another vehicle. The court held that Carol Huther could still be held liable for failing to expressly revoke permission of Bachle to drive the vehicle. By allowing the vehicle to be operated even with plates belonging to another, the court held that Carol Huther could be held liable. The fact that the operator of the car was unlicensed at the time does not preclude liability since a "legal user" has been held to be one who is using the vehicle with the owner's permission, whether or not he be licensed. (Aarons v. Standard Varnish Works, 163 Misc. 84, affd. 254 App. Div. 560.)Nor does the fact that the automobile was unregistered (either without plates of any kind or with illegal or stolen plates) preclude the liability of the owner. While not authority in this case, the decision in the case of Morgan v. Termine (2 Misc2d 109) is appropriate to cite here by analogy. [*4]In the Morgan case, defendant Termine was the owner of the unregistered vehicle which he was operating with the license plates of the defendant Scarpulla..The court held not only Termine liable but attached joint liability on Scarpulla since he knew that Termine was using his plates and Scarpulla thus enabled the car to be operated and should not be permitted to escape liability merely upon proof of nonownership. It is thus logical to hold that an automobile owner may give permission to another to use his unlicensed automobile so as to make liability attach to the owner, even though such operator is operating the automobile in violation of the law at the time of the accident. Defendant argues that she could not give the operator permission to violate the law and thus did not give legal consent. This is an interesting argument but it loses sight of the statutory purpose of section 59 [now § 388] of the Vehicle and Traffic Law. Defendant further argues and with considerable logic that when she surrendered her registration and her license plates and Bachle knew of this fact, that she thereby revoked the implied permission she had given him in the past. In view of the relationship between the defendant and Bachle by which Bachle used the automobile without limitation, this court holds that nothing less than an express revocation of the permission was necessary to preclude defendant's liability. Judgment is therefore granted to plaintiff in the amount of $742.35.

The above cases justify holding Annamarie Fernicola liable pursuant to VTL Sec. 388 as an owner because she allowed the vehicle to be operated with one plate on it and thus gave expressed and/or implied permission to Vinnie Fernicola to operate the vehicle.

CONCLUSION

The defendants Vinnie Fernicola and Annamarie Fernicola are jointly and severally liable to plaintiff in the sum of $5,000.00 with interest from the date of the accident of June 13, 2004.

SO ORDERED:

DISTRICT COURT JUDGE

Dated:March 3, 2005 [*5]

CC:

SF/mp