# ACE American Insurance Company v. Nobile

> District Court, E.D. New York · March 17, 2025

URL: https://www.frixlaw.com/law-library/cases/10825936

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 17, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

EASTERN DISTRICT OF NEW YORK For Online Publication Only
----------------------------------------------------------------------X
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
----------------------------------------------------------------------X
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10825936. Public record. Not legal advice.