Conte v. Aprea

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered December 18, 2003, which, inter alia, denied defendant-appellant Nissan Motor Acceptance Corporation’s (NMAC) motion for summary judgment dismissing the complaint and all cross claims and counterclaims asserted against it, affirmed, without costs. [226] Defendant Aprea was involved in a motor vehicle accident while driving a Nissan Pathfinder leased from defendant NMAC by defendant Ribaudo. The lease provided, “This Vehicle may not be used for any illegal purpose or to transport people or goods for hire. Except for occasional and incidental use by other licensed, qualified operators with your permission, you shall retain possession of this Vehicle.” The evidence is uncontroverted that Aprea had Ribaudo’s permission to drive the vehicle, and that, as far as Aprea knew, he was a licensed, qualified operator. As it happened, on the day of the accident, Aprea’s license was suspended for failure to pay a traffic ticket. However, Aprea only learned of the suspension of his license after the accident, from the police officers who responded to the scene. In the five years since he had obtained it, his license had never before been suspended. Vehicle and Traffic Law § 388 (1) provides that “[e]very 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.” NMAC moved for summary judgment dismissing the complaint as against it on the ground that Aprea was an unlicensed driver, in breach of the lease agreement, and therefore not a permissive user of the vehicle within the meaning of section 388. The court denied the motion, holding that the lease provision limiting use of the vehicle to licensed drivers is unduly restrictive and against public policy in the instant circumstances, where it is uncontested that Ribaudo neither knew nor should have known that Aprea’s license was suspended. We affirm on different grounds. To hold that NMAC has not demonstrated its entitlement to summary judgment as a matter of law, we need not find that a lease provision limiting use of a vehicle to licensed drivers is against public policy. At the outset, it should be noted that defendant moved for summary judgment on the ground that Aprea was an unlicensed driver. However, Aprea was, in fact, a licensed driver in the sense that he had successfully demonstrated the skills and ability necessary to operate a motor vehicle under the State’s licensing law. It is highly questionable, therefore, whether suspension of a license for failure to pay a traffic ticket may be construed as a breach of the “licensed” requirement in the lease. To the extent that the lease provision reflects state law that [227] makes it an offense to “operate! ] a motor vehicle upon a public highway while knowing or having reason to know that [one’s] license or privilege of operating such motor vehicle in this state or privilege of obtaining a license to operate such motor vehicle issued by the commissioner is suspended, revoked or otherwise withdrawn by the commissioner” (Vehicle and Traffic Law § 511 [1] [a]), we hold that public policy requires that the statutory element of knowing or having reason to know that one’s license is suspended be deemed to be implicit in the lease’s limiting provision (see Motor Veh. Acc. Indem. Corp. v Continental Natl. Am. Group Co., 35 NY2d 260, 264-265 [1974]). It is significant in this regard that suspension of a license for failure to pay a fine carries with it a notice requirement (see e.g. Vehicle and Traffic Law § 510 [4-a] [a] [“Such suspension shall take effect no less than thirty days from the day upon which notice thereof is sent by the commissioner to the person whose driver’s license or privileges are to be suspended”]). In construing the lease provision, we must also weigh the import of Vehicle and Traffic Law § 388, which expresses the policy that “one injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant” (Motor Veh. Acc. Indem. Corp., 35 NY2d at 264). Obviously, precluding liability on the part of the lessor in a case such as this does not further that policy. Nor, where the owner neither knew nor had reason to know that the driver’s license was suspended, does it further the equally important policy of encouraging owners to exercise a heightened degree of care when selecting and supervising drivers whom they permit to operate their vehicles (see Murdza v Zimmerman, 99 NY2d 375, 379 [2003]). • If section 388 “simultaneously increases the likelihood of compensation for those injured in motor vehicle accidents and decreases the probability of such accidents by encouraging an owner’s prudent selection of drivers” (Murdza at 379), then the significance of a driver’s license to an owner trying to select drivers prudently is as a credential of a certain level of skill in operating a vehicle. Thus, precluding liability on the part of the lessor where, as here, the driver’s license is suspended for failure to pay a ticket, not for inability to operate a motor vehicle, does not further the goal of decreasing the probability of motor vehicle accidents. Concur—Andrias, Ellerin and Nardelli, JJ.