Hidalgo v WCBS-TV, 2023 NY Slip Op 05789 [221 AD3d 486]

November 16, 2023

Appellate Division, First Department

[*1]

Daurin D. Hidalgo et al., Appellants,

v

WCBS-TV, Respondent, et al., Defendant.

Mitchell Dranow, Sea Cliff, for appellants.

Newman Law Associates PLLC, New York (Gregory Bakos of counsel), for respondent.

Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on July 12, 2022, which, to the extent appealed from as limited by the briefs, granted defendant WCBS-TV’s CPLR 3211 (a) (7) motion to dismiss, unanimously affirmed, with costs.

WCBS-NY submitted unrefuted evidence establishing that the van involved in the accident had been stolen, thereby rebutting the presumption that it was being operated with its consent ( see Vehicle and Traffic Law § 388 [1]; Alvarez v Bivens , 114 AD3d 526 [1st Dept 2014]). In opposition, plaintiffs failed to raise an issue of fact as to whether WCBS-NY had violated Vehicle and Traffic Law § 1210 (a).

Plaintiffs’ argument that WCBS-TV’s evidence was inadmissible is unpreserved and we decline to consider it.

We have considered plaintiffs’ remaining arguments, including that WCBS-TV’s motion was premature, and find them unavailing. Concur—Renwick, P.J., Kern, Gesmer, Shulman, O’Neill Levy, JJ..