Should He Be Registered as a Sex Offender?
Define That Term #40

Usually, But Not Always, I Know It When I See It

In Country Wide Ins. Co. v. National R.R. Passenger Corp., 2006 N.Y. Slip Op. 01112, the Court of Appeals considered the issue of whether summary judgment is appropriately granted where there are uncontradicted statements from both the owner and the driver of a vehicle that indicate that the driver was operating the vehicle without the owner's permission. 

The issue came before the Court of Appeals as a result of the United States Court of Appeals for the Second Circuit certifying certain questions relating Vehicle and Traffic Law s. 388(1), which provides in relevant part:

Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. . .

The Court concluded that in most circumstances, including the case at issue, summary judgment is appropriate where there are  uncontradicted statements from both the owner and the driver regarding the lack of permission granted to the driver.  However, the Court also stated that:

(D)isavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner. Where the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury...In short, whether summary judgment is warranted depends on the strength and plausibility of the disavowals, and whether they leave room for doubts that are best left for the jury.

In other words, the Court stated that "(u)sually, but not always," uncontradicted statements by the owner and the driver indicating that the driver was driving the vehicle without permission will warrant summary judgment.

It appears to me that the Court of Appeals has blurred the line between a legal and a factual determination.  In holding that the lower court judge is to determine the "strength and plausibility of the disavowals" the Court seems to imply that the judge may make factual determinations when considering whether to grant a summary judgment motion despite the fact that it is the province of the jury to assess the veracity of a witness. 

Additionally, the "usually, but not always"  language seems deliberately vague.  It strikes me as very similar to Justice Potter Stewart's famous definition of obscenity:  "I know it when I see it."  Both statements constitute ambiguity at its best!

For a less ambiguous holding from the Court of Appeals, see the New York Civil Law blog's analysis of Harris v. Niagara Falls Board of Educ., in which the Court considered the issue of whether the plaintiff properly commenced a special proceeding.

UPDATE: The New York Civil Law blog also has its own analysis of Country Wide Ins. Co., which can be found here.

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