Practice point: Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle 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. 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: Motion for leave to amend should be granted in the absence of a showing that the proposed amendment would prejudice or surprise the defendants, and the proposed amendment was not palpably insufficient or patently devoid of merit, CPLR 3025[b].
Case: Blassberger v. Varela, NY Slip Op 04796 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: A motion to dismiss a slip-and-fall action, and open and obvious conditions.
