SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

682 

CA 15-01907 

PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ. 

 

RAEQUEL L. GRAHAM, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CHARLESETTA JONES, YASMINE H. KIRKSEY, DEFENDANTS,

AND BUFFALO AUTO RENTAL, INC., DEFENDANT-APPELLANT. 

 

OSBORN, REED & BURKE LLP, ROCHESTER (JEFFREY P. DIPALMA OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

DOLCE PANEPINTO, P.C., BUFFALO (ANNE M. WHEELER OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Shirley

Troutman, J.), entered May 28, 2015. The order, insofar as appealed

from, denied in part the motion of defendant Buffalo Auto Rental,

Inc., for summary judgment dismissing the complaint against it. 

It is hereby ORDERED that the order so appealed from is affirmed

without costs.

Memorandum: Plaintiff commenced this action seeking damages for

injuries she sustained when her vehicle collided with a vehicle

operated by defendant Yasmine H. Kirksey and owned by defendant

Buffalo Auto Rental, Inc. (BAR). Kirksey did not have a driver’s

license at the time of the accident. The vehicle operated by Kirksey

had been rented by defendant Charlesetta Jones from BAR. Jones

testified at her deposition that she had rented vehicles from BAR

three or four times before the accident. Plaintiff commenced this

action and alleged causes of action for negligence, negligent

entrustment, and vicarious liability against BAR. With respect to the

negligent entrustment cause of action, plaintiff alleged that BAR

rented the vehicle to Jones and that BAR knew or should have known

that the vehicle would be operated by drivers other than Jones, such

as Kirksey, who did not have a driver’s license. 

Plaintiff previously moved to strike the answer and affirmative

defenses of BAR as they pertained to the cause of action for negligent

entrustment or, in the alternative, to preclude BAR from offering

evidence relevant to negligent entrustment, because of its spoliation

of evidence. In a prior order, Supreme Court found that BAR was

negligent in destroying its electronic records concerning any vehicle

rentals to Jones or Kirksey, and ordered that BAR was precluded from

introducing evidence of its electronic rental records with respect to
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CA 15-01907 

Jones or Kirksey at trial, with the exception of an unsigned rental

agreement between BAR and Jones involving the vehicle in the instant

collision that BAR had already disclosed. The court further ordered

that plaintiff was permitted to make an application at the time of

trial for an adverse inference charge based on BAR’s failure to keep

electronic records.

BAR moved for summary judgment dismissing the complaint against

it, and plaintiff abandoned the negligence cause of action and

withdrew the vicarious liability cause of action, leaving only the

negligent entrustment cause of action. The court granted the motion

in part by dismissing the vicarious liability cause of action and

denied that part of the motion seeking dismissal of the negligent

entrustment cause of action, and we now affirm. “The owner or

possessor of a dangerous instrument is under a duty to entrust it to a

responsible person whose use does not create an unreasonable risk of

harm to others” (Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 236;

see Kelly v DiCerbo, 27 AD3d 1082, 1083). “The duty may extend

through successive, reasonably anticipated entrustees” (Hamilton, 96

NY2d at 237). “The tort of negligent entrustment is based on the

degree of knowledge the supplier of a chattel has or should have

concerning the entrustee’s propensity to use the chattel in an

improper or dangerous fashion” (id. at 237; see Earsing v Nelson, 212

AD2d 66, 70). To establish a negligent entrustment cause of action, a

plaintiff must show that the defendant had “some special knowledge

concerning a characteristic or condition peculiar to the [person to

whom a particular chattel is given] which renders [that person’s] use

of the chattel unreasonably dangerous” (Monette v Trummer, 105 AD3d

1328, 1330, affd 22 NY3d 944 [internal quotation marks omitted]; see

Byrne v Collins, 77 AD3d 782, 784, lv denied 17 NY3d 702). With

respect to motor vehicles, an owner may be liable “if [it] had control

over the vehicle and if [it] was negligent in entrusting [the vehicle]

to one who [it] knew, or in the exercise of ordinary care should have

known, was incompetent to operate [the vehicle]” (Bennett v Geblein,

71 AD2d 96, 98).

Even assuming, arguendo, that BAR met its initial burden of

establishing its entitlement to judgment as a matter of law with

respect to the negligent entrustment cause of action, we conclude that

plaintiff raised a triable issue of fact. We agree with plaintiff

that Vlad Kats, the president of BAR, as well as Jones and Kirksey,

“gave wildly differing testimon[y] [at their depositions] concerning

all issues relevant to the negligent entrustment cause of action.” In

the event they so testify at trial, such inconsistent testimony may

warrant a falsus in uno charge (see generally DiPalma v State of New

York, 90 AD3d 1659, 1660). That conflicting evidence, together with

the adverse inference to which plaintiff may be entitled at trial,

raised a question of fact whether BAR had special knowledge that

Kirksey would be driving the vehicle and doing so without a driver’s

license.

We reject BAR’s contention that it cannot be held liable even if

it knew that Kirksey would be driving the vehicle without a driver’s
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license. The fact that Kirksey did not possess a driver’s license is

a factor to consider in determining whether BAR knew that Kirksey was

incompetent to operate the vehicle (see Nolechek v Gesuale, 46 NY2d

332, 336-337, 340 [negligent entrustment cause of action stated where

the father purchased a motorcycle for his son who, inter alia, did not

possess a license]; Cone v Williams [appeal No. 1], 182 AD2d 1102,

1102, lv denied 80 NY2d 758 [in support of the counterclaim for

negligent entrustment, the defendants were allowed to elicit testimony

from the father of the infant plaintiff that his son was not a

licensed operator of the all-terrain vehicle]; Calhoun v Allen, 38

Misc 3d 171, 178-179 [car rental business failed to meet its burden

because it failed to establish that the driver to whom it rented the

vehicle had a valid driver’s license]; cf. Monette, 105 AD3d at 1330-

1331 [the vehicle repair shop verified that the driver, inter alia,

had a valid driver’s license]). While we agree with the dissent that

“the absence or possession of a driver’s license is not relevant to

the issue of negligence” in the operation of a motor vehicle (Huff v

Rodriguez, 88 AD3d 1274, 1275, appeal dismissed 18 NY3d 869, lv denied

18 NY3d 919), this is a negligent entrustment cause of action, where

the issue does not concern the manner in which the accident occurred. 

Rather, the issue is whether BAR should have entrusted the vehicle to

Kirksey in the first instance.

All concur except PERADOTTO, and CARNI, JJ., who dissent and vote

to reverse the order insofar as appealed from in accordance with the

following memorandum: We respectfully dissent. Plaintiff’s cause of

action for negligent entrustment is premised upon the theory that, in

renting the vehicle to defendant Charlesetta Jones, defendant Buffalo

Auto Rental, Inc. (BAR) knew the vehicle would be used by defendant

Jasmine H. Kirksey and that BAR also knew, or in the exercise of

ordinary care should have known, that Kirksey was incompetent to

operate it (see Bennett v Geblein, 71 AD2d 96, 98). It is well

settled that, without a showing that the owner of the vehicle was or

should have been aware of incompetence on the part of the operator,

there can be no negligent entrustment (see Guay v Winner, 189 AD2d

1081, 1083). Here, plaintiff’s theory that Kirksey was not competent

to operate a motor vehicle is based entirely upon the undisputed fact

that Kirksey did not possess a driver’s license at the time of the

accident. 

However, it is well settled that “the absence or possession of a

driver’s license relates only to the authority for operating a

vehicle, and not to its manner of operation” (Almonte v Marsha

Operating Corp., 265 AD2d 357, 357; see Huff v Rodriguez, 88 AD3d

1274, 1275, appeal dismissed 18 NY3d 869, lv denied 18 NY3d 919;

Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 27, lv denied

11 NY3d 705). Because a driver’s license relates only to the

authority to operate a motor vehicle and not the manner of operation,

the absence of a license is not presumptive evidence of negligence

(see Phass v MacClenathen, 274 App Div 535, 538). Indeed, we have

held that evidence that a driver did not possess a valid driver’s

license at the time of the subject motor vehicle accident is

inadmissible on the issue of negligence (see Huff, 88 AD3d at 1275). 
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CA 15-01907 

Here, we conclude that in moving for summary judgment, BAR met

its initial burden of proof by submitting evidence that when it rented

the vehicle to Jones it had no knowledge that Kirksey would be

operating the vehicle or that Kirksey was incompetent to operate a

motor vehicle (see generally Alvarez v Prospect Hosp., 68 NY2d 320,

324). In opposition, plaintiff had the burden of raising a material

issue of fact as to both BAR’s knowledge of Kirksey’s use and of

Kirksey’s alleged incompetence to operate the vehicle (see generally

Zuckerman v City of New York, 49 NY2d 557, 562). 

There is no dispute that Kirksey was beyond infancy in that she

was 21 years of age at the time of the accident (see CPLR 105 [j]). 

Plaintiff does not allege that Kirksey was, for example, intoxicated

(see Bennett, 71 AD2d at 98-99), mentally incapacitated (see Splawnik

v Di Caprio, 146 AD2d 333, 335-336), physically impaired (see

generally Golembe v Blumberg, 262 App Div 759, 759; Schneider v Van

Wyckhouse, 54 NYS2d 446, 447), or otherwise incompetent to operate a

motor vehicle at the time of the rental or the accident (see

Restatement [Second] of Torts, Oct. 2016 Update § 309, Chattel for Use

by Person Known to be Incompetent). 

Nolechek v Gesuale (46 NY2d 332), cited by the majority, involves

an infant with impaired vision entrusted with a motorcycle by his

father, and “key to [that] case [was] the duty owed by parents to

third parties to control their children’s use of dangerous instruments

to avoid harm to third parties” (id. at 339). Such duty is not at

issue here. We note that the Court of Appeals, in discussing Nolechek

in Rios v Smith (95 NY2d 647), a case involving a parent’s entrustment

of an all-terrain vehicle (ATV) to an infant, addressed the negligent

entrustment theory in that case only with reference to the fact “that

[in Nolechek] the father had negligently entrusted the motorcycle to

his child, who was blind in one eye and had impaired vision in the

other eye,” and, notably, the Court of Appeals made no reference to

whether the infant possessed a driver’s license (Rios, 95 NY2d at

652).

Cone v Williams ([appeal No. 1] 182 AD2d 1102, 1102, lv denied 80

NY2d 758), also cited by the majority, likewise involved a parent’s

entrustment of an ATV to a 14-year-old child (see Cone v Nationwide

Mut. Fire Ins. Co., 75 NY2d 747, 748), who, at 14 years of age, could

not have under any circumstances held a driver’s license at the time

of the accident. We have no quarrel with the conclusion that an

infant, forbidden by statute to operate a motor vehicle because of his

or her age, is presumptively an incompetent operator (see e.g. Keller

v Wellensiek, 186 Neb 201, 206-207, 181 NW2d 854, 858). But that is

not the situation here.

Even assuming, arguendo, that BAR knew of Kirksey’s lack of a

driver’s license, we note that the majority fails to account for our

jurisprudence establishing that the lack of a driver’s license is not

admissible on the issue of the operator’s negligence (see Huff, 88

AD3d at 1275). Moreover, on the undisputed facts in this record, any

entrustment of the vehicle to Kirksey by BAR was not and could not
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CA 15-01907 

have been a proximate cause of the accident (see Hanley v Albano, 20

AD2d 644, 645). 

Lastly, with respect to the majority’s conclusion that BAR’s

motion should be denied on the possibility that plaintiff may be

entitled to a permissive adverse inference instruction (see PJI 1:77)

at trial with respect to whether BAR knew that Kirksey would be

driving the vehicle without a driver’s license, we conclude that such

a prospect is untenably remote to defeat summary judgment (see

generally Zuckerman, 49 NY2d at 562), and that, in any event, such an

inference would not overcome the rule that the lack of a driver’s

license is inadmissible on the issue of negligence in the operation of

a motor vehicle (see Huff, 88 AD3d at 1275). Likewise, the

possibility that inconsistent testimony by Jones, BAR and/or Kirksey

on the issue whether BAR knew at the time of the rental that Kirksey

would be driving and was unlicensed might yield a falsus in uno

instruction at trial is, in our view, insufficient to raise a material

issue of fact on the issues whether Kirksey was incompetent to operate

the vehicle (see id.), and whether such incompetence was a proximate

cause of the accident (see Hanley, 20 AD2d at 645). 

We would therefore reverse the order insofar as appealed from and

grant BAR’s motion for summary judgment dismissing the complaint

against it in its entirety. 

Entered: February 3, 2017 Frances E. Cafarell

Clerk of the Court