Garrett v Boone

[*1] Garrett v Boone 2009 NY Slip Op 50017(U) [22 Misc 3d 1104(A)] Decided on January 7, 2009 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 7, 2009
Supreme Court, Kings County

Dominique Garrett, Plaintiff,

against

Curtis Boone, THE PUBLIC ADMINISTRATOR OF KINGS COUNTY, AS ADMINISTRATOR OF THE PROPERTY GOODS & CHATTLES OF THE ESTATE of NORMA BAKER, GENERAL MOTORS ACCEPTANCE CORPORATION A/K/A GMAC and VEHICLE ASSET UNIVERSAL LEASING TRUST a/k/a VAULT, Defendant.(s)



11806/05



Plaintiff Dominique Garrett is represented by the law firm of Rosenbaum & Rosenbaum by Craig D. Rosenbaum, Esq., of counsel, the defendants Curtis Boone and the Estate of Norma Baker are represented by the law firm of Longo & D'Apice, Esqs., by Rosario M. D'Apice, Esq., of counsel, third-party plaintiff GMAC is represented by the law firm of Bivona & Cohen, P.C., by Kevin J. Donnelly, Esq., of counsel, the defendant the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Kimberly Lennard, Esq., of counsel

Robert J. Miller, J.

In this action, plaintiff Dominique Garrett (Garrett) alleges that while crossing Utica Avenue in Brooklyn, NY, she was struck by a car driven by defendant Curtis Boone (Boone). Boone was driving a car leased from defendant General Motors Acceptance Corporation (GMAC) by his mother Norma Baker (Baker) who had died two (2) months prior to the accident. Ms. Baker's estate is also a defendant. GMAC, Boone and the estate of Baker have instituted third-party and second third-party complaints against the City of New York (City). The theory of both third-party complaints is that a City ambulance was obstructing plaintiff's view thus causing the accident.

GMAC moves to strike plaintiff's note of issue claiming that there is outstanding discovery due from the City of New York.

GMAC also moves for summary judgment dismissing the complaint arguing that "once Ms. Baker died, the lease passed to her estate, and her estate under applicable law... did not have authority to allow Mr. Boone to operate the vehicle on behalf of GMAC."

GMAC relies on paragraph twenty-five (25) of the lease which provides that the lessee " will not sublease or otherwise transfer any right or interest you have under this lease or in the vehicle without prior written consent". GMAC than argues that the case (Putch v. Jacard Realty , 44 Misc 2d 177 [Sup Ct NY County 1979]) is "instructive".

Putch involves the death of a tenant in a rent controlled building and an attempt by her family to claim rights to the rent controlled unit at the end of the lease term. It involves interpretation of New York's rent control laws dealing with residential property, a jurisprudence that is unique to New York

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City and not applicable to the world of automobile leasing. It is not "instructive" in this case which involves the use of a leased car by the son of a lessee.

In addition, GMAC s attempt to rely on paragraph twenty five(25) is to no avail. There is no contention that Baker assigned or transferred the lease in this case. Instead, the record supports the finding that Baker gave permission to Boone to use the car. Nothing in the lease bars this use. The lease is also silent on the impact on the lease when there is the death of the lessee. Finally, paragraph eighteen (18) of the lease provides, inter alia, that "this lease must be primarily for personal, family or household use". Thus it appears that GMAC (notwithstanding the position taken on this motion) gave explicit consent to the use of the vehicle by the lessee Baker's family members.

Courts of this state have taken judicial notice that in automobile leasing situations it is common practice for the lessee to allow others to use the car. As the Court of Appeals noted in Motor Vehicle Accident Indemnification Corp. v Continental National American Group, 35 NY2d 260 [1974]:

The lessor (and Continental), because of the public

policy question involved, knew or should have known

that the probabilities of the car coming into the hands [*2]

of another person were exceedingly great and in these

circumstances they are to be charged with constructive

consent, which satisfies the requirements of section 388

of the Vehicle and Traffic Law. Any other interpretation

would be placing an unreasonable limitation on the

"permission" contemplated by that section. There was

constructive consent, as a matter of law, which satisfies

the statutory requirement that there be "permission"

express or implied.

The case here is even clearer, as unlike Motor Vehicle Accident Indemnification Corp, the lease here did not contain a bar of others using the leased vehicle and contemplates "family use"

GMAC fails to cite any case law in support of the proposition that Baker's death terminated any consent that she had given to her son. Moreover, GMAC fails to cites and ignores the provisions of the lease which provides that it is for "family use". The record is silent as to whether Boone has continued to make payments to GMAC under the lease as well as whether the Public Administrator has actually or constructively given consent to the continued use of the vehicle by Boone after Baker's death. On this record, it would be against public policy to allow GMAC to escape liability as the owner of the vehicle.

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(Lancer Insurance Co. v Republic Franklin Insurance Co., 304 AD2d 794[2d Dept. 2003]).Accordingly, GMAC's motion for summary judgment is denied.

The City has also moved for summary judgment asserting that there are no triable issues of fact that would establish the City's liability. In opposition, GMAC relies on the affidavit of Ronnie Williams, a passenger in Boone's car. Williams' asserts that there was an FDNY "ambulance blocking the far crosswalk". His affidavit also asserts that plaintiff crossed the street not in front of the ambulance but in front of a van parked in front of the ambulance. Even assuming the ambulance was in the crosswalk (which plaintiff herself disputes), the issue before the Court is whether where the ambulance was parked was the proximate cause of the accident.

Garrett testified as follows:

Q. When that happened were there any cars

then blocking any part of the pedestrian crosswalk?

When I say cars, I mean any kind of vehicle at all, was

anything blocking?

A. No.

Q. Now, you said earlier that when you stopped

you were able to look; is that correct?

A. Yes.

As such, plaintiff states that no vehicle blocked or obstructed her view while crossing. [*3]Therefore, where the City ambulance was parked was not the proximate cause of the accident. There is nothing in the record which supports or raises triable issues of fact as to the City's negligence. Accordingly, the City motion for summary judgment is granted. The Clerk of the Court is directed to dismiss the third party complaint and the second third-party complaint with prejudice. GMAC's motion to vacate the notice of issue is denied. The case is transferred to a non-city part.

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

January 7, 2009

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