ACE American Insurance Company v. Nobile

EASTERN DISTRICT OF NEW YORK For Online Publication Only

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ACE AMERICAN INSURANCE COMPANY and

BRIGHTVIEW LANDSCAPES, LLC,

Plaintiffs, MEMORANDUM & ORDER

22-cv-0099 (JMA) (ARL)

FILED

-against- CLERK

3/17/2025 10:49 am

BERNADETTE C. NOBILE,

U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Defendant.

LONG ISLAND OFFICE

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AZRACK, United States District Judge:

Presently before the Court is the motion by Plaintiffs Ace American Insurance Company

and Brightview Landscapes, LLC (“Plaintiffs”) for summary judgment pursuant to Federal Rule

of Civil Procedure 56. (ECF No. 35.) This case arises from a motor vehicle accident on July 11,

2021, between Bernadette C. Nobile (“Defendant”) and non-party Lance A. Russell, Jr. (See

Compl., ECF No. 1 ¶ 18.) Lance A. Russell, Jr. then brought claims in the Supreme Court of the

State of New York, County of Suffolk, Index No. 613789/2021, against Defendant and Plaintiff

Brightview to recover damages arising from this accident. (Compl., Ex. C.) In the instant case,

Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. § 2201 et seq. that Plaintiffs have no

duty to defend or indemnify Defendant regarding any claims or lawsuits filed as a result of the

July 11, 2021 motor vehicle accident. (Id. at ¶ 26.)

For the reasons set forth below, Plaintiffs’ motion for summary judgment is GRANTED.

A. Facts

On or about July 11, 2021, Defendant was involved in a motor vehicle accident with non-

party Lance A. Russell, Jr. (Compl. ¶ 10.) At the time of the accident, Defendant was operating a

motor vehicle owned by Plaintiff Brightview Landscapes, LLC (hereinafter “Brightview”) and

insured by Plaintiff Ace American Insurance Company (“ACE.”) (Id. ¶ 11.) The vehicle operated

by Defendant and owned by Brightview was provided by Defendant’s husband, Ray Nobile. (Id.

¶ 12.) Mr. Nobile was an employee of Brightview and was permitted to operate the vehicle

pursuant to Brightview’s Management Vehicle Program. (Id.) As a result of the July 11, 2021

motor vehicle accident, Lance A. Russell, Jr. filed a civil action in the Supreme Court of the State

of New York, County of Suffolk naming Defendant and Brightview as defendants. (Id., Ex. C.)

In 2014, Brickman Group merged with Valley Crest Companies to become Brightview

Landscapes, LLC. (Pl’s 56.1 ¶ 1.) Brightview maintains a Fleet Department and some of these

vehicles are used by Production Managers, Account Managers, Branch Managers, Regional

Leaders, Senior Vice Presidents, and Vice President General Managers. (Id. ¶ 2.) Brightview

owns or leases all these vehicles. (Id. ¶ 3.) Raymond Nobile was permitted to use a company

vehicle, as part of Brightview’s management vehicle program. (Compl. ¶ 12.) According to

Plaintiffs, in April 2019, a meeting was held to overhaul Brightview’s fleet program so that it was

consistent for all employees. (Pl’s 56.1 ¶ 6.) Defendant maintains that Raymond Nobile does not

1 The facts set forth in this Opinion are drawn from Plaintiff’s Complaint (ECF No. 1 (“Compl.”)) and the

parties’ submissions in connection with Plaintiffs’ motion for summary judgment. The Court draws from Plaintiffs’

Local Civil Rule 56.1 Statement of Facts (ECF No. 33-3 (“Pl’s’ 56.1”)), Defendant’s response to Plaintiffs’ Statement

of Facts (ECF No. 35-16 (“Def’s 56.1.”)) Citations to a party’s Rule 56.1 Statement incorporate by reference the

documents and testimony cited therein. For ease of reference, the Court refers to Plaintiffs’ brief in support of their

motion for summary judgment as “Pl’s Br.” (ECF No. 35-4), to Defendant’s opposition brief as “Def’s Opp.” (ECF

No. 35-16), and to Plaintiffs’ reply brief as “Pl’s Reply Br.” (ECF No. 35-17.) The facts are undisputed unless

otherwise noted.

1, 2019 to December 31, 2019), Plaintiffs assert that the fleet program no longer allowed spouses

to drive Brightview vehicles. (Pl’s 56.1 ¶ 7.) Further, Plaintiffs aver that in 2019 Raymond Nobile

attended a training session on the changes to the fleet program, which Defendant disputes. (Pl’s

56.1 ¶ 8; Def’s 56.1 ¶ 8.)

On May 28, 2019, Raymond Nobile signed a payroll deduction form along with a

Management Vehicle Authorization Form. (Pl’s 56.1 ¶ 9; Pl’s 56.1, Ex. C.) On this form, Raymond

Nobile signed his name below text in the agreement stating, “I will not allow any other individual

to drive the vehicle.” (Id., Ex. C.) On July 11, 2021, Mr. Nobile allowed Defendant to operate the

Brightview vehicle even though he was aware this agreement was still in effect. (Id. ¶ 11.) Neither

Mr. Nobile nor Defendant contacted Brightview before her operation of the vehicle to seek

permission to do so, nor was Mr. Nobile aware of any specific exceptions to the policy that would

have allowed his wife to operate the vehicle at that time. (Id. ¶ 12.) After the accident, Mr. Nobile

was disciplined by Brightview for allowing defendant to operate the vehicle and it was reiterated

that defendant was not authorized to operate Mr. Nobile’s company vehicle. (Id. ¶ 13.) At the

time of the motor vehicle accident, the vehicle was insured under a policy issued to Brightview by

ACE. (Id. ¶¶ 14-15.) In relevant part, the policy provides:

SECTION II – COVERED AUTOS LIABILITY COVERAGE

A. Coverage

We will pay all sums an “insured” legally must pay as damages because of “bodily

injury” or “property damage” to which this insurance applies, caused by an

“accident” and resulting from the ownership, maintenance or use of a covered

“auto”. . . . We have the right and duty to defend any “insured” against a “suit”

asking for such damages or a “covered pollution cost or expense”. However, we

have no duty to defend any “insured” against a “suit” seeking damages for “bodily

injury” or “property damage” or a “covered pollution cost or expense” to which this

insurance does not apply. We may investigate and settle any claim or “suit” as we

consider appropriate. Our duty to defend or settle ends when the Covered Autos

Liability Coverage Limit of Insurance has been exhausted by payment of judgments

or settlements.

The following are “insureds”:

a. You for any covered “auto”.

b. Anyone else while using with your permission a covered “auto” you own,

hire or borrow except:

(1) The owner or anyone else from whom you hire or borrow a covered

“auto”. This exception does not apply if the covered “auto” is a “trailer”

connected to a covered “auto” you own.

(2) Your “employee” if the covered “auto” is owned by that “employee” or

a member of his or her household.

(3) Someone using a covered “auto” while he or she is working in a business

of selling, servicing, repairing, parking or storing “autos” unless that

business is yours.

(4) Anyone other than your “employees”, partners (if you are a partnership),

members (if you are a limited liability company) or a lessee or borrower or

any of their “employees”, while moving property to or from a covered

“auto”.

(5) A partner (if you are a partnership) or a member (if you are a limited

liability company) for a covered “auto” owned by him or her or a member

of his or her household.

c. Anyone liable for the conduct of an “insured” described above but only to the

extent of that liability.

(Id., Ex. G.)

B. Procedural History

On July 20, 2021, Lance A. Russell, Jr. filed a complaint in New York State Court in the

County of Suffolk for damages arising from the July 11, 2021 accident. (See Compl., Ex. C.) On

January 6, 2022, Plaintiffs filed the instant action in the United States District Court for the Eastern

District of New York, seeking a declaratory judgment pursuant to the Declaratory Judgment Act,

28 U.S.C. § 2201 et seq., that Plaintiffs have no duty to defend or indemnify Defendant regarding

any claims or lawsuits filed as a result of the July 11, 2021 motor vehicle accident. (Compl.)

Defendant Nobile initially failed to answer, and the Clerk of the Court entered default against her.

(ECF No. 17.) On April 20, 2022, Defendant Nobile filed an untimely answer (ECF No. 18,) and

moved to vacate the default (ECF No. 23.) On April 19, 2023, the undersigned granted the motion

to vacate default. (Apr. 19, 2023 Order.) On May 14, 2024, after completing discovery, Plaintiffs

requested a pre-motion conference to move for summary judgment. (ECF No. 30.) The Court

schedule. (June 24, 2024 Order.) On August 21, 2024, Plaintiffs filed their fully briefed motion

for summary judgment. (ECF No. 35.)

II. LEGAL STANDARDS

A. Summary Judgment

Summary judgment must be granted when there is “no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue

of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party. A fact is material if it might affect the outcome of the suit under the governing

law.” Choi v. Tower Research Capital LLC, 2 F.4th 10, 16 (2d Cir. 2021); see McKinney v. City

of Middletown, 49 F.4th 730, 737 (2d Cir. 2022) (“No genuine dispute of material fact exists when

the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”)

(internal quotation marks omitted). “The moving party bears the initial burden of showing that

there is no genuine dispute as to a material fact.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018)

(internal quotation marks omitted). For any burden of proof that rests with the nonmoving party,

the movant can “point[ ] to a lack of evidence to go to the trier of fact on an essential element of

the nonmovant’s claim.” Id. (internal quotation marks and alterations omitted). Once the moving

party carries its burden, “the nonmoving party must come forward with evidence that would be

sufficient to support a jury verdict in its favor.” McKinney, 49 F.4th at 738 (internal quotation

marks omitted). In this analysis, the Court must “construe the evidence in the light most favorable

to the non-moving party and draw all reasonable inferences in its favor.” ING Bank N.V. v. M/V

Temara, 892 F.3d 511, 518 (2d Cir. 2018). Ultimately, “[t]he role of the district court on summary

judgment is ‘not to resolve disputed issues of fact but to assess whether there are any factual issues

2011)).

B. Declaratory Judgment

The Declaratory Judgment Act states that “[i]n a case of actual controversy within its

jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may

declare the rights and other legal relations of any interested party seeking such declaration, whether

or not further relief is or could be sought.” 28 U.S.C. § 2201(a). “[A] court may exercise its

discretion to issue a declaratory judgment, but only in cases where the party seeking the declaratory

judgment can demonstrate the existence of an actual case or controversy.” Gov't Emps. Ins. Co.

v. Infinity Health Prods., Ltd., No. 10-CV-5611, 2012 WL 1427796, at *4 (E.D.N.Y. Apr. 6, 2012),

report and recommendation adopted, 2012 WL 1432213 (E.D.N.Y. Apr. 25, 2012) (citing Cardinal

Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83, 95, 113 S.Ct. 1967, 124 L.Ed.2d 1 (1993)). The

relevant inquiry is “whether the facts alleged, under all the circumstances, show that there is a

substantial controversy, between parties having adverse legal interests, of sufficient immediacy

and reality to warrant the issuance of a declaratory judgment.” Olin Corp. v. Consol. Aluminum

Corp., 5 F.3d 10, 17 (2d Cir. 1993) (quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312

U.S. 270, 273 (1941)). “Declaratory relief is appropriate (i) where the judgment will serve a useful

purpose in clarifying and settling the legal relations in issue, or (ii) when it will terminate and

afford relief from the uncertainty, insecurity and controversy giving rise to the proceedings.”

Scottsdale Ins. Co. v. Empire State Medi-Cab, Inc., No. CV 23-3494, 2025 WL 277467, at *2

(E.D.N.Y. Jan. 23, 2025) (citing Gov't Emps. Ins. Co. v. Jacques, 14-CV-5299, 2017 WL 9487191,

at *9 (E.D.N.Y. Feb. 13, 2017) (internal quotation marks and citation omitted), report and

recommendation adopted, 2017 WL 1214460 (E.D.N.Y. Mar. 31, 2017).

The crux of Plaintiffs’ argument is that Defendant was not operating the company vehicle

with the Brightview’s permission, and thus Plaintiffs are not liable to indemnify or defend in the

underlying state action. (See Pl’s Br. at 8-12.) Defendant argues that there are genuine issues of

material fact on the question of whether the company policy covers Defendant, and thus Plaintiffs

do not meet their burden of proof for summary judgment.2 (See Def’s Opp. at 2-8.) For the

following reasons, the Court finds that Plaintiffs satisfy their burden to demonstrate that there is

no genuine dispute that Defendant is not covered by the company policy. They are therefore

entitled to a declaratory judgment that they have no duty to defend or indemnify Defendant

regarding any claims or lawsuits filed as a result of the July 11, 2021 motor vehicle accident.

A. Declaratory Judgment is Appropriate

As stated above, “Declaratory relief is appropriate (i) where the judgment will serve a

useful purpose in clarifying and settling the legal relations in issue, or (ii) when it will terminate

and afford relief from the uncertainty, insecurity and controversy giving rise to the proceedings.”

Scottsdale Ins. Co., 2025 WL 277467, at *2. Here, declaratory relief is appropriate. The state

court action presents the requisite case or controversy because Defendant could attempt to collect

from Plaintiffs if she is found liable for damages arising from the car accident. See id. at *2 (“The

state court action presents the requisite case or controversy because Empire State could attempt to

collect from plaintiff if found liable.”); accord Am. Eur. Ins. Co. v. Tirado Iron Works & Fence,

Inc., No. 19-CV-6851, 2021 WL 7830143, at *5 (E.D.N.Y. Oct. 20, 2021) (finding that a plaintiff

2 Defendant also argues that Plaintiffs’ motion for summary judgment is facially defective because “Plaintiff-

movants' have failed to include copies of the necessary pleadings herein.” (Def’s Opp. at 9.) The Court disagrees.

As Plaintiffs correctly point out, “Rule 56, however, does not require a moving party to attach all of the pleadings to

its motion. Neither does Local Rule 56.1 or 56.2. Instead, a moving party need only “cit[e] to particular parts of

materials in the record, including depositions, documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other

materials” in support of its motion.” (Pl’s Reply Br. at 8) (citing Fed. R. Civ. P. 56(c)(1)(A)). Plaintiff sufficiently

cites to relevant materials in the record. The Court therefore finds that Plaintiffs’ motion for summary judgment is

not facially deficient.

pending in New York state court was entitled to a declaratory judgment). Thus, because Plaintiffs

could be liable for damages arising from the underlying state action, declaratory judgment is

appropriate here.

B. Plaintiffs Are Entitled to Summary Judgment

For the Court to grant summary judgment, Plaintiffs have the burden to demonstrate that

there is no genuine dispute that they are not responsible to defend and indemnify Defendant in the

underlying action. For the following reasons, the Court finds that Plaintiffs satisfy this burden.

1. There is No Genuine Dispute That the Vehicle Authorization Policy

Expressly Bars Defendant from Using Raymond Nobile’s Company Vehicle

In the present dispute over the Policy, the Court is required to give “unambiguous terms”

their “plain and ordinary meaning.” Scottsdale Ins. Co. v. Freedom G.C. Inc., 564 F. Supp. 3d 253,

258 (E.D.N.Y. 2021) (citing Teichman v. Cmty. Hosp. of W. Suffolk, 87 N.Y.2d 514, 640 N.Y.S.2d

472, 663 N.E.2d 628, 630 (N.Y. 1996)). Here, Raymond Nobile signed the Vehicle Authorization

Form, which states, inter alia, that “I will not allow any other individual to drive the vehicle.”

(ECF No. 32-9 at 2.) That statement is unambiguous, and clearly demonstrates that Plaintiff

Brightview did not permit Mr. Nobile to allow any other individual, including Defendant, to drive

the vehicle. (See also ECF No. 35-10 (“Ray Nobile Deposition”) at 18 (Mr. Nobile giving the

following answer to the following question regarding who was excluded from driving the vehicle:

Q: Did you understand that to include your spouse? A: I would assume so, yes…)) Thus, the clear

language of the vehicle authorization form, signed by Mr. Nobile, demonstrates that Brightview

expressly excluded “any other individuals” from operating the vehicle.

Despite this explicit policy, Defendant argues that there are ambiguities in the agreement

that create triable issues of fact as to whether Defendant was expressly permitted to use the vehicle.

Defendant asserts that there “are clear questions of fact surrounding permissive use in this matter;

alleged policy change was clear, whether employees were fully aware of the alleged policy

changes, and whether same was ever truly enforced by Brightview.” (Def’s Opp. at 7.) Defendant

advances this argument by contending that it “is unclear as to when any policy changes went into

effect at Brightview” with respect to permitting spouses to use company vehicles, and that the

vehicle authorization form’s reference to “reasonable personal use,” “reasonable ‘about town’

evening and weekend use,” and “vacationing and for other non-business usage” creates ambiguity

as to the meaning of the agreement. (Id. at 7, 4-5.)

The Court finds that none of these alleged ambiguities, however, rise to a genuine dispute

of material fact. Even if Defendant and Mr. Nobile were unclear as to precisely when the policy

change went into effect, Mr. Nobile’s signing of the Vehicle Authorization Form on May 28, 2019

put him on notice of any change well before the accident. (ECF No. 32-9 at 2.) Moreover, there

is no genuine dispute that the language of the Form, stating that “I will not allow any other

individual to drive the vehicle” is unclear as to whether Brightview expressly permitted Mr. Nobile

to allow his spouse to use the company vehicle. Finally, Defendant’s contention that there is

ambiguity because of references to “reasonable personal use” and “reasonable about town’ evening

and weekend use,” fails. These references are not ambiguous as to who is permitted to drive the

vehicle, given that the same policy forbids the signatory from allowing “any other individual to

drive the vehicle.” (Id.) Thus, there is no triable issue of fact as to the express meaning of the

Vehicle Authorization Policy.

2. New York Vehicle and Traffic Law § 388 (“VTL § 388”)

Although there is no genuine dispute over the express meaning of the Vehicle Authorization

Policy, New York Vehicle and Traffic Law § 388(1) makes every owner of a vehicle liable for

injuries resulting from negligence “in the use or operation of such vehicle . . . by any person using

(emphasis added). VTL § 388(1) “imputes to the owner of a motor vehicle the negligence of one

who uses or operates that vehicle with the permission, express or implied, of such owner.” Padilla

v. Felson, 28 AD3d 530, 530, 813 NYS2d 744 (2006) (internal quotation marks omitted); see also

VTL § 388). “The strong presumption of permissive use afforded by Vehicle and Traffic Law §

388, can only be rebutted by substantial evidence sufficient to show that the driver of the vehicle

was not operating the vehicle with the owner’s consent.” Matter of State Farm Fire & Cas. Co. v.

Hayes, 78 AD3d 1063, 1063, 912 NYS2d 588 (2010) (internal quotation marks omitted).

Here, Plaintiffs contend that the unambiguous language of the Vehicle Authorization Policy

is sufficient to rebut the “strong presumption” of implied permission under New York Vehicle and

Traffic Law. (Pl’s Br. at 9.) Defendant rejects this argument, instead asserting that Brightview

gave “constructive, or implied, permission for [Defendant] to use the vehicle,” and is therefore

liable under VTL § 388. (Def’s Opp. at 3) (citing Carlson v. American International Group, Inc.,

30 N.Y.S d 288 (2017); Bernard v. Mumuni (1st Dep't 2005); Liberty Mut. Ins. Co. v General Acc.

Ins. Co., 277 AD2d 981, 981-982 (2000)). For the following reasons, the Court agrees with

Plaintiffs and finds that they rebut the presumption of permissive use under VTL § 388.

Plaintiffs argue that this case is controlled by the New York Court of Appeals decision in

Murdza v. Zimmerman, 99 N.Y.2d 375, 786 N.E.2d 440, 756 N.Y.S.2d 505 (2003) “as the facts of

this case are nearly identical to the facts of the case herein.” (Pl’s Br. at 9.) Indeed, in Murdza,

the New York Court of Appeals found that the presumption of permissive use can be rebutted

where “substantial evidence established that permission was conditioned upon driving in a certain

locality only or conditioned upon instructions not to allow any riders, the owner was exonerated

from liability when an accident occurred subsequent to a breach of the restriction.” Murdza, 99

N.Y.2d 375 at 380. As is the case here, the defendant in Murdza was a third-party user of a

Murdza, Brown & Williamson, had an employee handbook which stated that “Brown &

Williamson authorizes only you [the employee] and your licensed spouse to use the Company

vehicle for personal purposes . . . during off-duty hours, normal weekend driving, holidays and

vacations providing the spouse has submitted a Form SA–5248, ‘Indemnification.’” Id. at 378 n.1.

Accordingly, the Murdza Court held that “B & W's employee handbook explicitly restricted those

who may operate its vehicles and thereby rebutted the presumption of liability under Vehicle and

Traffic Law § 388(1).” Id. at 382.

The Court agrees that this case is controlled by Murdza, and Plaintiffs have similarly

rebutted the presumption against implied or permissive use. Defendant, however, argues that

Murdza is inapposite. Defendant contends, inter alia, that unlike the case here, Zimmerman “was

not the legal spouse of the employee in [Murdza].” (Def’s Opp. at 4.) She also asserts that because

“[t]he public policy implications of VTL § 388 are of utmost important in these scenarios; [and]

especially so in the instant matter . . .” the Court should find that there is a triable issue of fact

concerning whether Defendant was an “implied permissive user of the Brightview Landscapes

vehicle.” (Def’s Opp. at 5-6.) The Court takes each of these arguments in turn.

First, the Court does not see any material significance in the fact that Defendant was the

legal spouse of Mr. Nobile. The New York Court of Appeals’ rationale in finding that Defendant

Zimmerman was not a permissive user of Brown & Williamson’s vehicle had nothing to do with

the nature of the relationship between Zimmerman and his girlfriend. Rather, the holding was

focused on the fact that “B & W's employee handbook explicitly restricted those who may operate

its vehicles,” and that Zimmerman fell within that restriction. Murdza, 99 N.Y.2d 375 at 382.

Defendant argues that if “Mr. Zimmerman had been the spouse of the employee, the case analysis

by the Court, arguably, would have been different, and subsequently followed Defendant Nobile's

Brightview allows employees to use “company vehicles during off-duty hours, weekends,

vacations, holidays, and other personal time,” it knew or should have known that the vehicle would

be used by spouses. (Id. at 5.) This argument, however, again misses the crucial point that Mr.

Nobile signed the Vehicle Authorization Form, which prohibits “any other individual” from using

the vehicle. (ECF No. 32-9 at 2.) Moreover, the Court sees no reason as to why it would be

reasonable that Brightview knows or should know that a spouse would use a vehicle during

“personal time”, when the Murdza Court explicitly held that Brown & Williamson could not be

held liable for a boyfriend doing the same. The Court thus disagrees with Defendant and finds that

there is no material difference that Defendant is the employee’s spouse.

Second, there are no public policy considerations sufficient to dissuade the Court from

following Murdza. Defendant asserts that because “Brightview Landscapes has a fleet of 11,000

vehicles; 2,500 of which are designated for management positions . . . akin to car rental fleet

insured pursuant to a commercial auto policy,” the Court, for public policy reasons, should decline

to follow Murdza and instead follow Motor Veh. Acc. Indem. Corp. v. Continental Natl. Am. Group

Co., 35 N.Y.2d 260 (1974) (hereinafter “MVAIC”). In Murdza, the New York Court of Appeals

remarked on its finding of constructive consent in MVAIC that:

Our finding of constructive consent—despite the owner's restrictions—rested, in

part, on the public policy concerns surrounding the large number of vehicles placed

on the road by businesses that rent cars to others for profit, and the inevitability that

these vehicles will "become involved in their fair share of accidents" (id. at 263).

Unlike restrictions placed on the use of an individual's vehicle by a friend, we

reasoned that restrictions by car rental agencies implicate more serious concerns as

they affect the use of a large number of vehicles on our roads over potentially long

time periods. Noting that any departure from such lease restrictions could leave an

injured victim without the "recourse to a financially responsible defendant"

contemplated by section 388, we found that "[t]he restrictions sought to be imposed

by [theinsurer] violate the public policy of this State" {id. at 264). Thus, the agency

"knew or should have known that the probabilities of the car coming into the hands

of another person were exceedingly great and in these circumstances they are to be

charged with constructive consent, which satisfies the requirements of section 388

attempt to balance the policy goals of the statute and the realities of an automobile-

based society.

Murdza, 99 N.Y.2d 375, 380-81 (discussing Motor Veh. Acc. Indem. Corp. v. Continental Natl.

Am. Group Co., 35 N.Y.2d 260 (1974)). Due to Brightview’s large number of vehicles, Defendant

suggests that this Court follow MVAIC and find that public policy concerns dictate that Defendant

had permissive or constructive use of the vehicle. (Def’s Opp. at 6.)

The Court disagrees and finds that the instant case is controlled by Murdza. Although

Brightview has 11,000 vehicles throughout the United States, the sheer number of vehicles is not

sufficient alone to create public policy concerns. Rather, it is the nature of the relationship between

a business that rents vehicles for profit and a customer that creates important public policy

considerations. As the Murdza Court further explained:

While it is foreseeable that a rented vehicle would come into the hands of any

number of operators by the very nature of the quasi-ownership relationship created

by a lease, the bailment of a vehicle to an employee spawns a markedly different

relationship with its own set of expectations. Indeed, an at-will employment

relationship and the frequent contact between an employee and employer demand

compliance with restrictions on vehicle operation placed on the employee. As a

result of this relationship, it is reasonable for an employer to expect employees to

comply with its use restrictions. Thus, allowing an employer explicitly to restrict

those who may operate its vehicles, while simultaneously restricting its liability as

an owner under Vehicle and Traffic Law § 388, encourages careful selection of

operators—the curative policy underpinning of the section.

Murdza, 99 N.Y.2d 375 at 381-82 (emphasis added); see also Roger M. v. Am. United

Transportation, Inc., 78 Misc. 3d 1201(A), 183 N.Y.S.3d 297 (N.Y. Sup. Ct. 2023) (“The Court of

Appeals’ decision in MVAIC rested, in part, on the public policy concerns surrounding the large

number of vehicles placed on the road by businesses that rent cars to others for profit, and the

inevitability that these vehicles will become involved in their fair share of accidents.”) (emphasis

added). Here, however, Brightview’s vehicles are not rented for profit, and it is not inevitable that

third parties will use the vehicles. Rather, “it is reasonable for an employer to expect employees

contains an identical employee-employer relationship with respect to the company vehicle, with

nearly identical restrictions as Murdza. Thus, the Court follows Murdza and holds that the

unambiguous terms of the Vehicle Authorization Policy here rebut the presumption that Defendant

had implied or constructive permission to operate the vehicle. And, because Defendant had neither

express nor implied or constructive permission to operate the vehicle, Plaintiffs are not obligated

to defend or indemnify Defendant for claims arising from the underlying action.

IV. CONCLUSION

For the foregoing reasons, the Court finds that Plaintiffs are entitled to summary judgment

and declaratory relief. This Court declares that Plaintiffs have no duty to defend or indemnify

Defendant with respect to any claims or lawsuits filed as a result of the July 11, 2021 motor vehicle

accident, including but not limited to the claims asserted in the underlying action (see Lance A

Russell, Jr. v. Bernadette C. Nobile et al., Index No. 613789/2021 (N.Y. Sup. Ct.)) The Clerk of

the Court is respectfully directed to close this case.

SO ORDERED.

Dated: March 17, 2025

Central Islip, New York

/s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE