Sanford over at Second Opinions reports on the United States Circuit Court of Appeals for the Second Circuit’s recent certification of 5 questions to the New York Court of Appeals in So v. National Railroad Passenger.  The questions address the permissive user statute under New York’s Vehicle and Traffic Law sec. 388(1).  The questions are as follows:

(1) Whether, under New York law, uncontradicted statements of both the owner and the driver that the driver was operating the vehicle without the owner’s permission are sufficient to warrant a court in awarding summary judgment to the owner;

(2) If the answer is “no,” whether additional circumstantial evidence such as the contemporaneous accident reports submitted by the owner here may tip the balance and warrant a court in awarding summary judgment despite the interested nature of the sources;

(3) Assuming arguendo that summary judgment could not be awarded under either scenario, whether the uncontradicted testimony of driver and owner that the the driver was operating the vehicle without permission, even if not sufficient to warrant summary judgment, is sufficient at a trial to overcome the statutory presumption of permissive use, thereby placing the burden on plaintiff to prove permissive use at trial;

(4) Whether, even if the uncontradicted testimony of driver and owner that the use of the vehicle was without permission is not by itself enough to rebut the presumption of permissive use, the addition of such further evidence as contemporaneous accident reports by the owner is sufficient to do so, with the result that at trial the burden of proving permissive use will rest on the plaintiff; and

(5) Whether the answer to any of the above questions is affected by the absence of evidence that Amtrak reported the unauthorized use of its vehicle to any law enforcement agency.

The New York Court of Appeals will likely determine whether to accept the questions during its June Decision Days.