634 N.Y.S.2d 316 | N.Y. App. Div. | 1995
—Order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied the motion of defendant rental agency for summary judgment
Here, there are inconsistencies in the deposition testimony of defendant Myles and the affidavit of his mother. According to the deposition testimony of defendant Myles, his mother gave him express permission to operate the vehicle on the day before the accident but did not give him permission to operate it on the day of the accident. According to the affidavit of the mother, she never gave her son permission to operate the vehicle. The testimony of defendant Myles that his mother gave him express permission to operate it on the day before the accident raises an issue of fact whether his mother gave him implied permission to operate the vehicle on the day of the accident (see, MVAIC v Levinson, 218 AD2d 606; Greater N. Y. Mut. Ins. Co. v Clark, supra; Wynn v Middleton, supra). That issue of fact precludes summary judgment to either party.
We modify the order on appeal, therefore, by denying the cross motion of defendant Myles for summary judgment determining that defendant rental agency is liable for plaintiffs’ damages.
All concur except Balio, J., who dissents in part and votes to reverse in the following Memorandum:
Balio, J. (dissenting in part). I respectfully dissent in part. I agree with the majority that Supreme Court should have denied the cross motion of defendant Myles for summary judgment. I further agree with the principle that, "[w]here substantial evidence is offered tending to rebut the presumption of consent, the issue becomes a question of fact for the jury” (Wynn v Middleton, 184 AD2d 1019, 1020 [emphasis added]). However, summary judgment is appropriate when, as here, the uncontroverted testimony of defendant Myles at his examination before trial establishes that he did not have permission, express or implied, to drive the vehicle at the time