Bachta v Red's Express, Inc.

[*1] Bachta v Red's Express, Inc. 2012 NY Slip Op 50786(U) Decided on April 27, 2012 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
.

Dariusz Bachta, Respondent,

against

Red's Express, Inc., Appellant. RED'S EXPRESS, INC., Third-Party Plaintiff, MARTIN AMENDOLARO, Third-Party Defendant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered August 25, 2010. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $5,000 against defendant Red's Express, Inc. The appeal from the judgment brings up for review a judgment of the same court entered August 25, 2010 awarding third-party plaintiff, Red's Express, Inc., the principal sum of $5,000 on its third-party action for indemnification against third-party defendant Martin Amendolaro.

ORDERED that the judgments are reversed, without costs, and judgments are directed to be entered dismissing plaintiff's action and third-party plaintiff's action.

Plaintiff commenced this small claims action to recover for damage to his vehicle caused by defendant's tow truck colliding with it. Defendant impleaded third-party defendant Martin Amendolaro, seeking indemnification. After a nonjury trial, the Civil Court awarded plaintiff the principal sum of $5,000 and awarded third-party plaintiff the principal sum of $5,000 on its third-party action for indemnification against third-party defendant. On appeal, defendant contends that it should not have been found liable for the damage to plaintiff's vehicle because it established that its tow truck had been stolen by third-party defendant Martin Amendolaro, who had been operating the tow truck at the time of the accident.

Vehicle and Traffic Law section 388 (1) imputes to the owner of a motor vehicle the negligence of one who operates it with his or her permission. Decisional law has held that there is a presumption that a vehicle is being operated with the owner's consent (see Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d 172, 176 n 2 [2006]; Murdza v Zimmerman, 99 NY2d 375, 380 [2003]; Leotta v Plessinger 8 NY2d 449, 461 [1960]). The presumption of an owner's consent may be overcome by substantial evidence to the contrary (see Murdza v Zimmerman, 99 NY2d at 380; Leotta v Plessinger 8 NY2d at 461). In the case at bar, defendant's [*2]employee testified that the tow truck had been stolen from him by third-party defendant, and that, as a result, criminal charges had been brought against Amendolaro. The Civil Court found, among other things, that defendant's employee's testimony was "credible," and that the tow truck had been operated without defendant's consent. Given the Civil Court's credibility determination, which we find no reason to disturb, plaintiff's cause of action against defendant must be dismissed, as the presumption that the vehicle was being operated with defendant's consent was rebutted. Accordingly, the judgment in favor of plaintiff is reversed and judgment is directed to be entered dismissing plaintiff's action against defendant. In view of the foregoing, the judgment in favor of third-party plaintiff for indemnification must also be reversed and judgment is directed to be entered dismissing the third-party action (see Salerno v New York Cent. R.R. Co., 21 AD2d 850 [1964]; Siegel, NY Prac § 543, at 968 [5th ed]; cf. Hecht v City of New York, 60 NY2d 57 [1983]). Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 27, 2012