Maguire v. Upstate Auto, Inc.

182 A.D.3d 757

122 N.Y.S.3d 397

Debra A. MAGUIRE, Individually and as Administrator of the Estate of Caitlin Marie Briggs, Deceased, Appellant,

v.UPSTATE AUTO, INC., Respondent.

528958

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 11, 2020

Decided and Entered: April 9, 2020

Steven M. Melley, PLLC, Rhinebeck (Steven M. Melley of counsel), for appellant.

Burke Scolamiero & Hurd, LLP, Hudson (Steven V. DeBraccio of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Aarons, J. Defendant is a car dealership that, in 2015, had a Honda Silver Wing scooter displayed on its lot for sale. Although defendant's primary owner was reluctant to be involved in the sale of the scooter, the owner's father, who was defendant's prior owner and also volunteered as a salesperson for defendant, agreed to do so as a favor to a friend. The owner's father showed the scooter to a close family friend (hereinafter decedent) and arranged for a test drive of it. When decedent arrived at defendant, the owner, but not his father, was present. The owner told decedent that she had to wait for his father. Decedent nonetheless took the scooter for a test drive and subsequently died after being involved in an accident. Plaintiff, individually and as administrator of decedent's estate, commenced this action against defendant alleging, as relevant here, a cause of action for negligent entrustment. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint. Supreme Court held that defendant established that it was not the owner of the scooter and granted the motion. Plaintiff appeals. We reverse.

"An owner of a motor vehicle ... may be liable for negligent entrustment if he or she was negligent in entrusting it to one who he or she knew, or in the exercise of ordinary care should have known, was incompetent to operate it" ( Perkins v. City of Tompkins, 160 A.D.3d 1189, 1190, 74 N.Y.S.3d 648 [2018] [internal quotation marks, brackets and citations omitted]; see Graham v. Jones, 147 A.D.3d 1369, 1371, 46 N.Y.S.3d 329 [2017] ). The owner stated in an affidavit that neither his father nor defendant owned the scooter. Nevertheless, the scooter was displayed for sale on defendant's front lot and the owner stated in his deposition testimony that he would push the scooter from the garage to the lot each morning. The keys for the scooter would be in the scooter when it was on display in the lot and then was kept in a separate box behind the owner's desk when it was not on display. The helmet was likewise kept in the office of the owner's father. Viewing the foregoing evidence in the light most favorable to plaintiff, we conclude that a question of fact exists as to whether defendant exerted dominion and control over the scooter so as to be its owner (see Terranova v. Waheed Brokerage, Inc., 78 A.D.3d 1040, 1040, 912 N.Y.S.2d 253 [2010] ; Dobson v. Gioia, 39 A.D.3d 995, 999, 834 N.Y.S.2d 356 [2007] ). Although defendant also maintains that the owner's father was the only person responsible for dealing with the scooter and that the father was not its employee, the father nonetheless had an office at defendant and voluntarily sold cars for it on a daily basis. In view of this and taking into account that the scooter was displayed for sale on defendant's lot, the trier of fact must determine whether the owner's father was acting on behalf of defendant to sell the scooter.

Defendant alternatively argues that it did not have knowledge that decedent was incompetent to operate the scooter. The owner stated that he thought decedent had a motorcycle permit, but he did not confirm this fact with decedent nor did he inquire as to whether she knew how to drive the scooter. The owner also did not check decedent's driver's permit or have her sign anything prior to when she drove the scooter. Other than knowing that decedent had ridden a two-wheel Yamaha...