Dorizas v. Island Insulation Corp.

Goldstein, J.,

concurs in part and votes to dismiss the appeals from the order dated May 21, 1996, and the transcript dated August 7, 1996, but dissents in part and votes to affirm the order dated March 13, 1998, with the following memorandum: At the hearing on whether the appellants had sold the subject vehicle prior to the accident, the plaintiff demonstrated that the certificate of title issued by the New York State Department of Motor Vehicles listed the appellant Mode Plastics, Inc. (hereinafter Mode), as the owner of the subject vehicle. As the majority notes, this clearly “constitutes prima facie evidence of [Mode’s] ownership of the vehicle (see, Vehicle and Traffic Law § 2108 [c])” (Sosnowski v Kolovas, 127 AD2d 756, 758).

To rebut the presumption of ownership, the appellants relied upon the testimony of Kenneth Lorenz of the defendant Ken-*249n/s Fleet Maintenance, Inc. (hereinafter Kenny), which held a lien for the cost of repairs to the subject vehicle. The lien was purportedly satisfied from the proceeds of the sale of the subject vehicle.

The plaintiff initially alleged that Kenny owned the subject vehicle at the time of the accident, based upon a handwritten note on the lien indicating that the certificate of title was turned over to Kenny. Although the plaintiff abandoned that claim for lack of evidence to support it, Lorenz cannot be considered a disinterested witness.

Lorenz admitted that he did not see the transfer of title from Mode to Island Insulation Corp. (hereinafter Island Insulation), but relied upon the statement of Mode’s president over the telephone that Mode had signed the subject vehicle over to Island Insulation, so Island Insulation could take it. There were no license plates on the subject vehicle at the time of the purported transfer. Lorenz observed Island Insulation’s employees take plates off another vehicle, put them on the subject vehicle, and drive off. Lorenz had “no idea” when these events occurred, but assumed “[i]t wasn’t winter yet” because everyone was wearing short-sleeved shirts. After his recollection was “refreshed]”, Lorenz testified that the lien for the cost of repairs was placed on the subject vehicle in September 1987.

The appellants also called as a witness one of their own employees, who testified that he cancelled the insurance on the subject vehicle prior to the accident, and further testified that in order to cancel insurance “[y]ou’d have to turn in the plates, get an FS6 from the Department of Motor Vehicles and submit the FS6 to your insurance broker”. The witness further testified that this was done in this case but did not produce the “FS6” form or any other documentation to support his testimony that the license plates were turned in to the Department of Motor Vehicles. The insurance was, in fact, cancelled prior to the accident. An endorsement from the appellants’ insurance broker stated that the insurance was cancelled because the subject vehicle was sold. However, there was no testimony from the broker as to what evidence, if any, it relied upon in determining that the subject vehicle was sold.

Thus, it appears that the so-called evidence of transfer of title prior to the accident was based upon hearsay and self-serving testimony. As the majority notes, substantial deference must be given to the determination of the hearing court (see, Evering v Bronx Chrysler Plymouth, 234 AD2d 586; Matter of Kaplan v Overlin, 215 AD2d 387, 388). The hearing court’s determination that the appellants failed to meet their burden of *250rebutting the presumption of ownership is clearly justified by the absence of any documentary evidence in support of their claim, and their failure to present competent and credible oral testimony. Indeed, there is no documentary evidence that the parties complied with any of the statutory requirements for transfer of title of a vehicle (see, Vehicle and Traffic Law §§ 420, 2113).

Although “[tjitle to a motor vehicle passes when the parties intend that it pass (Borhurst v Massachusetts Bonding & Ins. Co., 21 NY2d 581)” (Fulater v Palmer’s Granite Garage, 90 AD2d 685), it does not follow that the hearing court is legally bound by the self-serving testimony of an interested party as to when title was transferred. It is well settled that the question of the credibility of witnesses should be left to the trier of the facts (see, Sacher v Long Is. Jewish-Hillside Med. Ctr., 142 AD2d 567).