I respectfully dissent. The statutory presumption of express or implied permission (Vehicle and Traffic Law § 388) is a strong one and, even when rebutted by substantial uncontradicted evidence, ordinarily this only creates an issue of fact for the jury (May v Heiney, 12 NY2d 683; Leotta v Plessinger, 8 NY2d 449; Piwowarski v Cornwell, 273 NY 226, 229; Ryder v Cue Car Rental, 32 AD2d 143, 147; Reyes v Sternberg, 27 AD2d 828; Cosimo v Hollenbeck, 19 AD2d 921). At the very least, since the presumption shifts the risk of nonpersuasion to the defendant owner, issues of credibility remain open for resolution by the jury (James, Burdens of Proof, 47 Va L Rev 51, 69; see, Reyes v Sternberg, supra). Therefore, the fact patterns where the rebuttal of the presumption has been held sufficiently strong to warrant summary judgment or a directed verdict have generally been where the uncontrovertible proof established that the driver had stolen the vehicle (see, Albouyeh v County of Suffolk, 96 AD2d 543, affd 62 NY2d 681) or uncontradicted evidence from disinterested witnesses prove that the person to whom the car had been entrusted had *842exceeded his authority (see, Capalario v Murray, 52 AD2d 1037).
Here, the stipulation between the owner and the purchaser of the vehicle, which the majority finds conclusive of nonconsent, was made some 2 Vz months before the accident. The buyer paid the full purchase price at the time and the only reason title was not then transferred was that the owner had to first process his own title through the Department of Motor Vehicles. The buyer was for all intents and purposes the beneficial owner of the car. A jury could well have inferred under these circumstances that the parties to the sale contemplated that only a brief period would elapse before conveyance of title was completed and that the restriction on use by other drivers was likewise only to be temporary. The availability of the buyer or the driver at the time of the accident to be called as witnesses for the trial or to be deposed before trial by either party is not revealed in the record. If anything, the facts suggest possible unavailability, in which case the evidence on express or implied consent would be exclusively within the knowledge of the owner, an interested witness, and plaintiff would not be in a position to contradict it (see, Piwowarski v Cornwell, supra; Cosimo v Hollenbeck, supra). For all of these reasons, in my view, summary judgment dismissing the complaint as against the owner should have been denied.