189 A.D.2d 1081 | N.Y. App. Div. | 1993
Appeal from an order of the Supreme Court (Plumadore, J.), entered April 6, 1992 in Sara-toga County, which granted a motion by defendant Sportline Power Products, Inc. for summary judgment dismissing the complaint against it.
Defendant Thomas D. Winner shopped for a motorcycle at the dealership operated by defendant Sportline Power Products, Inc. Winner asked to be permitted to test drive a motor
Guay and her husband commenced this action to recover damages for her personal injuries alleging, inter alia, that Sportline violated Vehicle and Traffic Law § 509 (4) by negligently entrusting the motorcycle to an unlicensed and inexperienced driver. Following discovery, Sportline moved for summary judgment dismissing the complaint against it. Supreme Court held that the undisputed facts failed to show either a violation of Vehicle and Traffic Law § 509 or a negligent entrustment, and granted the motion. Plaintiffs have appealed.
Plaintiffs contend that Supreme Court erred in failing to find present an issue of fact as to whether Sportline knew or
Plaintiffs next contend that the established facts create a violation of Vehicle and Traffic Law § 509 (4) which would be some evidence of negligence. We disagree. Vehicle and Traffic Law § 509 (4) states, "No person shall knowingly authorize or permit a motor vehicle owned by him or in his charge to be operated in violation of subdivisions one, two or three of this section.” Subdivision (2) of section 509 prohibits operation of a motor vehicle by a person unless he is a holder of a class of license which is valid for the operation of such vehicle. Plaintiffs argue that motorcycles require a class 7 license and Winner, while licensed to drive an automobile, lacked a class 7 license. Cardinale inquired and was satisfied that the motorcycle would be taken from the premises by a person with a license to operate a motorcycle before he released the keys to Winner, the purchaser. These circumstances did not constitute a violation of Vehicle and Traffic Law § 509 by permitting the motorcycle to be operated unlawfully. Sportline has made an evidentiary showing of entitlement to judgment (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). To successfully
Mikoll, Yesawich Jr., Mercure and Crew III, JJ., concur. Ordered that the order is affirmed, with costs.
Winner passed the written examination for a class 7 endorsement on March 27, 1990 and passed the road test portion of the examination on April 16, 1990.