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Burden Of Proof To Dispute Consent Under New York Vehicle And Traffic Law §388 (NY)

October 8, 2021

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<p style="text-align: justify;">In <em><a href="">Johari v. Patel</a></em>, the Supreme Court, Kings County recently addressed whether a vehicle owner was entitled to summary judgment on the issue of whether the co-defendant driver was operating a vehicle without the owner’s consent. Plaintiff was a passenger in the vehicle and allegedly sustained injuries in a car accident. Plaintiff sued both drivers involved in the accident and the owner of the vehicle, alleging that the owner was vicariously liable for the driver’s negligence pursuant to Vehicle and Traffic Law §388 (1).</p>
<p style="text-align: justify;">However, the owner disputed liability and claimed that the driver did not have permission to use his vehicle. The owner provided an affidavit which stated that he was out of state at the time of the accident and did not give permission to the driver. The owner also provided an uncertified police report, which was ultimately found inadmissible and disregarded by the court.</p>
<p style="text-align: justify;">In evaluating the owner’s summary judgment motion, the court observed that “Vehicle and Traffic Law §388 imputes to the owner of a car the negligence of any person who uses or operates it with the owner's permission. This section gives rise to a presumption that the vehicle is being operated with the owner's consent. However, this presumption may be rebutted by substantial evidence to the contrary.” (citations omitted). The court held the owner did not provide “substantial evidence” to rebut this presumption and, as such, his motion for summary judgment was denied.</p>
<p style="text-align: justify;">This decision serves as a reminder that when sued for vicarious liability, the burden is on the vehicle owner to establish by “substantial evidence” (a high burden) that the vehicle was being operated without their consent.</p>
<p style="text-align: justify;">Thank you to Corey Morgenstern for his contribution to this post. Please email <a href="">Andrew Gibbs</a> with any questions.</p>

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