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

82
CA 13-01171
PRESENT: FAHEY, J.P., LINDLEY, SCONIERS, AND WHALEN, JJ.


DAVID R. MARKHAM, CHRISTINE V. MARKHAM AND
JAMES MARKHAM, AS ADMINISTRATOR OF THE ESTATES
OF STEVEN R. MARKHAM AND SANDRA H. MARKHAM,
DECEASED, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

EDWARD J. SCHMIEDER, BRUCE C. KERSHENSKI,
DEFENDANTS-RESPONDENTS,
NOTHNAGLE DRILLING, INC., DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


FLINK SMITH LLC, ALBANY (EDWARD B. FLINK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (JOHN H. CALLAHAN OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.

HISCOCK & BARCLAY, LLP, ROCHESTER (MARK T. WHITFORD, JR., OF COUNSEL),
FOR DEFENDANT-RESPONDENT EDWARD J. SCHMIEDER.

COSTELLO, COONEY & FEARON, PLLC, CAMILLUS (DANIEL R. ROSE OF COUNSEL),
FOR DEFENDANT-RESPONDENT BRUCE C. KERSHENSKI.


     Appeal from an order of the Supreme Court, Cayuga County (Thomas
G. Leone, A.J.), entered August 30, 2012 in a personal injury action.
The order, inter alia, denied the motion of defendant Nothnagle
Drilling, Inc. for summary judgment dismissing the complaint and any
cross claims against it.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
personal injuries, loss of consortium and wrongful death resulting
from a motor vehicle accident in which a vehicle owned by defendant
Nothnagle Drilling, Inc. (NDI) and operated by defendant Edward J.
Schmieder (Schmieder), an employee of NDI, struck motorcycles operated
by Steven R. Markham (Steven), Sandra H. Markham (Sandra) and
plaintiff David R. Markham (David). Steven and Sandra were killed in
the accident, and David sustained personal injuries. According to
plaintiffs, NDI is vicariously liable for Schmieder’s negligence
because Schmieder was operating the NDI-owned vehicle with NDI’s
permission. NDI subsequently moved for summary judgment dismissing
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the complaint and any cross claims against it, and Supreme Court
denied the motion. We affirm.

     “ ‘[I]t is well settled that Vehicle and Traffic Law § 388 (1)
creates a strong presumption that the driver of a vehicle is operating
it with the owner’s permission and consent, express or implied, and
that presumption continues until rebutted by substantial evidence to
the contrary’ ” (Margolis v Volkswagen of Am., Inc., 77 AD3d 1317,
1320; see Leotta v Plessinger, 8 NY2d 449, 461, rearg denied 9 NY2d
688, mot to amend remittitur granted 9 NY2d 686). As the undisputed
owner of the subject vehicle, NDI is presumed to have granted
permission to Schmieder to have been operating it at the time of the
accident (see Murdza v Zimmerman, 99 NY2d 375, 380; Leotta, 8 NY2d at
461). As the movant, it was NDI’s obligation to rebut the presumption
of permission with substantial evidence (see Matter of Fiduciary Ins.
Co. of Am. [Jackson], 99 AD3d 625, 625; Margolis, 77 AD3d at 1320;
Power v Hodge, 37 AD3d 1078, 1078-1079; Guerrieri v Gray, 203 AD2d
324, 325), i.e., “evidence which reasonably sustains the proposition
that permission was not given or was subject to a restriction . . .
with which the operator did not comply” (1A NY PJI3d 1:63 at 85
[2014]; see Orlando v Pioneer Barber Towel Supply Co., 239 NY 342,
345). “[S]ummary judgment for the owner will not inexorably follow
whenever the owner and driver disavow consent” but, rather, “whether
summary judgment is warranted depends on the strength and plausibility
of the disavowals, and whether they leave room for doubts that are
best left for the jury” to resolve (Country-Wide Ins. Co. v National
R.R. Passenger Corp., 6 NY3d 172, 179). In other words, “[w]here the
disavowals are arguably suspect, as where there is evidence suggesting
implausibility, collusion or implied permission, the issue of consent
should go to a jury” on the theory that the determination of the
weight to be accorded the disavowals lies with the trier of fact (id.
at 178; see St. Andrassy v Mooney, 262 NY 368, 372).

     Here, we conclude that NDI failed to meet its initial burden on
its motion inasmuch as there is an issue of fact whether the
disavowals of permission by Schmieder and NDI’s primary owner are
“arguably suspect” (Country-Wide Ins. Co., 6 NY3d at 178; see Marino v
City of New York, 95 AD3d 840, 841; Power, 37 AD3d at 1078-1079;
Stewart v Town of Hempstead, 204 AD2d 431, 431). Although both
Schmieder and NDI’s primary owner testified at their depositions that
Schmieder was using the subject vehicle for personal travel without
the permission of NDI at the time of the accident, the record is
unclear whether permission for such personal use was in fact required
from NDI’s primary owner. Indeed, the record establishes that any
limitations on the use of the subject vehicle were never communicated
to Schmieder in writing, and neither Schmieder nor NDI’s primary owner
testified at their depositions with specificity whether or how any
such limitations were verbally communicated to Schmieder. Moreover,
there is no evidence whether or how any rule concerning the use of
vehicles for personal travel was communicated to the 8 or 10 other NDI
employees who were assigned NDI-owned vehicles prior to the accident.
In addition, Schmieder’s access to the subject vehicle was unfettered
and, although NDI paid for fuel for the vehicle, it did not require
Schmieder to record the vehicle’s mileage. The record also
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                                                         CA 13-01171

establishes that Schmieder could not recall NDI’s primary owner ever
denying permission to any NDI employee to use an NDI-owned vehicle for
personal travel, and it further establishes that other NDI employees
used their NDI-owned vehicles for personal travel, and that Schmieder
had used the subject vehicle for both local and out-of-town personal
travel prior to the accident.




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
