Practice point: For summary judgment on its defense that the vehicle
was used without its permission, the defendant must present substantial evidence that the vehicle was used without its permission. The owner's uncontradicted testimony that the vehicle
was operated without permission does not, by itself,
overcome the presumption of permissive use. The question of consent is ordinarily one for the jury.
Student note: Vehicle and Traffic Law § 388 creates a strong presumption that the
driver is operating it with the owner's consent, which can
only be rebutted by substantial evidence demonstrating that the vehicle
was not operated with the owner's express or implied permission.
Case: Han v. BJ Laura & Son, Inc., NY Slip Op 07480 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Damages for a hot water burn.
