        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1065
CA 15-00255
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


ANTONIO MARTIN, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LANCER INSURANCE COMPANY, DEFENDANT-APPELLANT.


BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (RICHARD NICOTRA
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered November 17, 2014. The order denied the motion
of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this breach of contract action
seeking no fault benefits under an insurance policy issued by
defendant to D & M Collision, Inc. (D & M), a car dealership that
allegedly owned the vehicle in which plaintiff was injured when it was
struck from behind by another vehicle. Defendant moved for summary
judgment dismissing the complaint, contending that the vehicle in
question was not owned by D & M, its insured, at the time of the
accident and thus is not covered by the policy. We conclude that
Supreme Court properly denied the motion inasmuch as there is an issue
of fact whether D & M owned the vehicle.

     Plaintiff had a business relationship with D & M’s owner whereby
plaintiff would use D & M’s dealer credentials to purchase used
vehicles at auction. On June 14, 2012, plaintiff, using D & M’s
credentials, purchased a 2001 Chrysler 300 at auction for $600.
Although plaintiff used his own money to purchase the vehicle, the
Retail Certificate of Sale form (form MV-50) issued in conjunction
with the sale identifies D & M as the buyer. Approximately two months
later, in mid-August 2012, plaintiff agreed to sell the vehicle to
Edward Hardy. The title to the vehicle could not be transferred to
Hardy, however, until the vehicle passed inspection, and the vehicle
could not pass inspection until its computer codes had been cleared.
According to plaintiff, the vehicle had to be driven a certain
distance in order for the codes to be cleared.
                                 -2-                          1065
                                                         CA 15-00255

     On August 31, 2012, the vehicle was involved in an accident while
Hardy was driving and plaintiff was a passenger. At that time, title
to the vehicle still had not been transferred to Hardy because the
codes had not yet been cleared, and the vehicle therefore had not yet
passed inspection. In the accident, plaintiff sustained injuries for
which he received medical treatment, and he thereafter sought payment
of his medical expenses by defendant under the policy it issued to D &
M. Defendant refused to provide coverage on the ground that its
policy did not cover the vehicle because the vehicle was not owned by
D & M, and plaintiff thereafter commenced this action.

     The no-fault coverage defendant provided to D & M covered all
vehicles “owned” by D & M. Vehicle and Traffic Law § 128 defines an
“owner” as “[a] person, other than a lien holder, having the property
in or title to a vehicle.” Generally, “ownership is in the registered
owner of the vehicle or one holding the documents of title[,] but a
party may rebut the inference that arises from these circumstances”
(Fulater v Palmer’s Granite Garage, 90 AD2d 685, 685, appeal dismissed
58 NY2d 826; see also Zegarowicz v Ripatti, 77 AD3d 650, 653). Where
there is conflicting evidence of ownership, the issue must be resolved
by a trier of fact (see Sosnowski v Kolovas, 127 AD2d 756, 758;
Fulater, 90 AD2d at 685). Moreover, we note that there may be more
than one owner of a vehicle and, to the extent that there is more than
one owner here, they may be jointly and severally liable to plaintiff
(see Vehicle and Traffic Law § 388 [1], [3]; Hassan v Montuori, 99
NY2d 348, 353).

     Here, the evidence submitted by defendant in support of its
motion failed to eliminate all issues of fact whether D & M owned the
subject vehicle at the time of the accident. Notably, the vehicle was
purchased with D & M’s dealer credentials and, at the time of the
accident, D & M had title to the vehicle, and its dealer plates were
on the vehicle. Although defendant presented additional evidence
seeking to rebut the presumption of D & M’s ownership arising from
those circumstances, the court properly concluded that it failed to do
so (see generally Aronov v Bruins Transp., 294 AD2d 523, 524;
Sosnowski, 127 AD2d at 758).

     Defendant’s remaining contentions are raised for the first time
on appeal and thus are not properly before us (see Ciesinski v Town of
Aurora, 202 AD2d 984, 985).




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
