In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with: (1) plaintiffs’ motion (Seq. No. 2) seeking an order, pursuant to CPLR §3215, granting them default judgment against defendant GREGORY MALLA (“Malla”), setting this matter down for an inquest at the conclusion of the case, and awarding costs, attorneys’ fees, and sanctions to plaintiffs; and (2) defendants AMERICAN UNITED TRANSPORTATION, INC.’s (“AUT”) and AMERICAN UNITED TRANSPORTATION II INC.’s (“AUT II”; and, together with AUT, “American United”) motion (Seq. No. 3) seeking an order, pursuant to CPLR 3212 and Vehicle and Traffic Law (“VTL”) §388, granting them summary judgment on the issue of liability and dismissing any and all claims and cross-claims against them. Motion Sequences 2 and 3 are consolidated herein for purposes of disposition. Oral argument on both motions was heard before the Court virtually via Microsoft Teams on July 26, 2022. This personal-injury action arises from a motor-vehicle accident that occurred on December 29, 2019, when a vehicle driven by plaintiff ROGER MINCHALA was allegedly struck in the rear by a vehicle driven by defendant GREGORY MELLA (“Mella”) and owned by AUT. Plaintiffs ROSALIA MINCHALA-RODRIGUEZ, JACQUELINE MINCHALA, and J.M. were passengers in plaintiff ROGER MINCHALA’s vehicle. A. Plaintiffs’ Default Motion To prevail on a motion for a default judgment, a plaintiff is required to (1) demonstrate proof of service of the summons and complaint, (2) establish that the defendant is in default, and (3) submit proof of the facts constituting the plaintiff’s claims. CPLR §3215; Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192 (2d Dep’t 2017). Here, Plaintiffs have satisfied all three requirements for entry of a default judgment against Mella: 1. In an Order resolving a prior motion by plaintiffs for substitute service on Mella pursuant to CPLR 308(5), the Court ordered that Mella be served via his insurance carrier, American Country Insurance Company, by ordinary mail and express/overnight mail. [NYSCSEF Doc. 35] Plaintiffs have submitted an affidavit of service demonstrating that service on Mella was completed on June 22, 2021, as ordered by the Court. [Id.] 2. Pursuant to CPLR §3012(c), Mella’s answer was due on July 15, 2021. Plaintiff has established that, to date, Mella has failed to file an answer. 3. Plaintiffs have each submitted affidavits setting forth the facts of their claims against defendants. [NYSCEF Doc. 38] Accordingly, the motion (Seq. No. 2) is GRANTED, without opposition, to the extent that default judgment shall be entered against Mella. An inquest as to the damages owed by Mella, if any, shall take place at the time of trial. Finally, Plaintiffs’ request for costs, attorneys’ fees, and sanctions against Mella is DENIED. B. American United’s Summary-Judgment Motion American United’s motion for summary judgment (Seq. No. 3) is based primarily on allegations of lack of permissive use. Specifically, while American United concedes that AUT owned the vehicle driven by Mella, American United contends that Mella was never authorized to operate the vehicle. Thus, American United argues that it cannot be held vicariously liable for Mella’s negligence under VTL §388. VTL §388(1) “makes every owner of a vehicle liable for injuries resulting from negligence in the use or operation of such vehicle…by any person using or operating the same with the permission, express or implied, of such owner.” State Farm Fire & Cas. Co. v. Sajewski, 150 A.D.3d 1297, 1297 (1st Dep’t 2017) (quoting Murdza v. Zimmerman, 99 N.Y.2d 375, 380 (2003)) (internal quotation marks). Under VTL §388(1), “there is a presumption that the operator of a vehicle operates it with the owner’s permission.” Id. (citations omitted). “The presumption may be rebutted by substantial evidence that the owner did not give the operator consent.” Id. (citations omitted). In support of its motion, American United submits three pieces of evidence. The first is the affidavit of Neil Miller, the Chief Operating Officer of AUT, AUT II, and EZ Livery Leasing LLC (“EZ Livery”). [NYSCEF Doc. 45] Initially, Mr. Miller explains that AUT “is a company [that] acquires vehicles and maintains for-hire vehicle licenses” and that EZ Livery “is an affiliate company [that] leases or sells such vehicles on behalf of AUT to qualified operators licensed by the New York City Taxi and Limousine Commission.” [Id. 2] Mr. Miller goes on to aver that, based on his search of American United’s and EZ Livery’s records, AUT was the registered owner of the vehicle operated by Mella, which vehicle bears the New York State license plate number T680041C. [Id. 4] According to Mr. Miller, on November 13, 2019, EZ Livery, on behalf of AUT, financed the vehicle to nonparty Candelario Glenys (“Glenys”) pursuant to a finance agreement. [Id.
