Allstate Indemnity Co. v. Nelson , 728 N.Y.S.2d 82 ( 2001 )

—In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, State Farm Mutual Automobile Insurance Company appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), entered December 14, 1999, which, inter alia, granted the petition and permanently stayed arbitration, and Raffaele Naso separately appeals, as limited by his brief, from stated portions of the same order.

Ordered that the order is reversed, on the law, with one bill of costs, and the petition is denied.

‘“Vehicle and Traffic Law § 388 (1) imputes to the owner of a motor vehicle the negligence of one who uses or operates it with his or her permission. This section gives rise to a presumption that the vehicle is being operated with the owner’s consent, but the presumption may be rebutted by substantial evidence to the contrary” (Headley v Tessler, 267 AD2d 428; see, Leotta v Plessinger, 8 NY2d 449, 461; State Farm Mut. Auto. Ins. v White, 175 AD2d 122; Guerra v Kings Plaza Leasing Corp., 172 AD2d 583; Bruno v Privilegi, 148 AD2d 652; Jimenez v Regan, 248 AD2d 510). As the record contains “uncontradicted evidence that the * * * driver did not have express permission to operate the motor vehicle involved in the accident; and there was no competent evidence from which permission or authority could be inferred,” the presumption of consent was rebutted as a matter of law (Barrett v McNulty, 27 NY2d 928, 929; see, Headley v Tessler, supra).

Since the owner’s insurance policy did not provide coverage because the vehicle was operated without the owner’s consent, “a prompt notice of disclaimer was not required” {Government Empls. Ins. Co. v Pagano, 251 AD2d 452, 454; see, Zappone v Home Ins. Co. 55 NY2d 131; Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57, 60; Empire Group Allcity Ins. Co. v Cicciaro, 240 AD2d 362; Jasper Corp. /Celotex Corp. v Dunikowski, 229 AD2d 424; Matter of Fireman’s Fund Ins. Co. v Freda, 156 AD2d 364; Schmidt v Prudential Ins. Co., 143 AD2d 997; Katz v Allstate Ins. Co., 96 AD2d 930). Friedmann, J. P., Florio and Luciano, JJ., concur.