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Consent, I Presume? VTL §388 and Permissive Use

, New York Law Journal

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Kevin G. Faley and Andrea M. Alonso write that Vehicle and Traffic Law §388 establishes a rebuttable presumption that a vehicle owner consented to the operation of her vehicle by another party, and is therefore vicariously liable for the acts of the permitted driver, once a plaintiff meets the threshold requirement of proving a defendant's ownership of a vehicle. The burden then shifts to the defendant to offer "substantial evidence" that consent was neither given expressly or impliedly. While this seems pretty straightforward, this burden is fairly difficult to meet.

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