# Allstate Indemnity Co. v. Nelson > Appellate Division of the Supreme Court of the State of New York · July 16, 2001 · 285 A.D.2d 545 URL: https://www.frixlaw.com/law-library/cases/6072882 ## Case - **Full name:** In the Matter of Allstate Indemnity Company v. Robert Nelson, State Farm Mutual Automobile Insurance Company, and Armando Conforti - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** July 16, 2001 - **Citations:** 285 A.D.2d 545; 728 N.Y.S.2d 82; 2001 N.Y. App. Div. LEXIS 7462 - **Precedential status:** Published - **Opinion:** Dissent by McGinity - **Judges:** McGinity - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6072882 ## How later opinions describe it (automated extraction) - finding presumption rebutted without addressing dissent’s points that owner did not remember whether he reported vehicle as stolen and driver was never charged with driving stolen vehicle ## Opinion text McGinity, J., dissents and votes to affirm the order with the following memorandum: The issue here is whether the Supreme Court properly determined that the insured owner of the subject vehicle failed to overcome the presumption of permissive use of the vehicle with substantial evidence. Since, in my view, the determination was proper, the order appealed from permanently staying arbitration should be affirmed. The relevant facts are as follows: On January 9, 1997, Armando Conforti and Robert Nelson were injured when their respective vehicles collided. The vehicle driven by Conforti was registered to his uncle, the appellant Raffaele Naso, and insured by the appellant State Farm Mutual Automobile Insurance Company (hereinafter State Farm). The petitioner, Allstate Indemnity Company, insured the Nelson vehicle. The State Farm policy issued to Naso provided, inter alia, that “insured” meant “any * * * person while occupying * * * an automobile owned by the named insured or, if the named insured is an individual, such spouse and used by or with the permission of either.” Allstate commenced this proceeding to stay the arbitration sought by Nelson, its insured. At the hearing, Conforti, who did not have a valid driver’s license, testified that on the date of the accident, he was operating a vehicle owned by Naso. He further stated that the vehicle, parked at Naso’s residence, was locked when he entered it and that he had never driven it before. Conforti also acknowledged placing the keys in the vehicle. Naso testified that Conforti was welcome in his home and that he would see Conforti on a daily basis in his home. When Conforti asked him to do so, Naso drove him from place to place. Naso stated that on those occasions, he would get the keys to the vehicle from a drawer or he would tell Conforti to get the keys from the vehicle. On the date of the accident, Naso testified that he knew that Conforti’s license had been revoked multiple times and that Conforti did not have a valid driver’s license. Naso stated that he did not give Conforti permission to drive the vehicle and, indeed, had denied Confor *547 ti’s previous requests to do so. Naso further testified that he could not remember whether he ever reported his vehicle stolen. However, he never testified against Conforti for having taken the car. Although the police responded to the scene of the accident, Conforti was neither charged nor convicted of either operating the vehicle without permission of the owner or operating a stolen vehicle. The Supreme Court determined that Conforti’s use of the vehicle was permissive. I would affirm. It is well established that the owner of a motor vehicle is liable for the negligence of one who operates the vehicle with the owner’s express or implied consent (see, Vehicle and Traffic Law § 388 [1]; Leotta v Plessinger, 8 NY2d 449, 461 ). There is a presumption that the vehicle is operated with the owner’s permission and this presumption continues unless and until there is “substantial evidence” to the contrary (Headley v Tessler, 267 AD2d 428 ; Tabares v Colin Serv. Sys., 197 AD2d 571 ). The issue of whether someone had permission to use a motor vehicle is generally an issue of fact (see, Lipetz v Palmer, 216 AD2d 367, 368 ) and rebutting the presumption of permissive use with “substantial evidence” is not easy. As noted by the Second Circuit Court of Appeals, “even where the owner and driver testify without contradiction as part of the defendant’s case that the driver has no permission or was out of the scope of [authority], the case should still go to the trier of fact and if that evidence of interested witnesses is disbelieved the presumption has not been overcome” (Mandelbaum v United States, 251 F2d 748, 751 [2d Cir]; see also, Horvath v Lindenhurst Auto Salvage, 104 F3d 540 [2d Cir]). The Supreme Court weighed the testimony of the interested witnesses in light of all the circumstances and came to the conclusion that the statutory presumption of implied permission was not overcome. In my view, in so doing, the Supreme Court providently exercised its discretion and its finding should not be disturbed (cf., Winnowski v Polito, 294 NY 159, 161 ). Accordingly, the order appealed from should be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6072882. Public record. Not legal advice.