(dissenting in part). We respectfully dissent in part. We cannot agree with the majority’s conclusion that Supreme Court properly granted the motion of Gary A. Walters (defendant) for summary judgment dismissing the complaint against him. In our view, the majority has failed to distinguish between a “renter” and an “authorized driver”. *944While the term “authorized driver” includes the renter, if a licensed driver (see, General Business Law § 396-z [1]), the terms are not synonymous.
We agree with the majority that permitting the unauthorized use of the leased vehicle does not, without more, amount to “willful and wanton misconduct” within the meaning of General Business Law § 396-z (2) (a). The issue, however, is not whether the lease agreement may "so define that term, but whether it may prohibit use of the leased vehicle by unauthorized drivers and hold the renter liable for any damages resulting from such unauthorized use. “The Legislature is deemed to have abrogated common law only to the extent that the clear import of the language of such statutes requires” (Morris v Snappy Car Rental, 189 AD2d 115, 121, affd 84 NY2d 21).
Under the circumstances of this case, defendant is not entitled to the protection of General Business Law § 396-z (2). That protection extends only to a renter who is an authorized driver and either is operating the vehicle at the time that the damage occurs or has entrusted the vehicle to another authorized driver. Here, the damage to the vehicle was caused during an unauthorized driver’s use of the rented vehicle (see, Thrifty Car Rental v Crowley, 177 Misc 2d 1021, 1022). The statute was not intended to protect someone who rents a vehicle and then, in breach of the agreement, permits an unauthorized driver to operate the vehicle (see, Thrifty Car Rental v Crowley, supra, at 1023-1024). Under the statutory construction adopted by the majority, a licensed driver may rent a vehicle and, by virtue of his or her status as an “authorized driver”, may then entrust the rented vehicle to any third party and be absolved of all but $100 liability. Although the Legislature enacted General Business Law § 396-z (2) in order to shift the risk of loss from the renter to the rental company, we conclude that the risk contemplated is the use of the vehicle by authorized drivers, not by any person to whom the renter decides to entrust the vehicle.
Even if section 396-z (2) is construed to include defendant as an authorized driver, plaintiff is not entitled to summary judgment. The rental agreement provides that the renter will not be liable if the rented vehicle is stolen, unless the renter has left the vehicle “unattended without all of the windows and doors closed and locked and the ignition key removed”, or if the renter has relinquished the key to a third party or is unable to produce the key to the vehicle (fl 10). There is a triable issue of fact whether defendant engaged in any of those enumerated behaviors. (Appeal from Order of Supreme Court, Onondaga *945County, Stone, J. — Summary Judgment.) Present — Hayes, J. P., Wisner, Pigott, Jr., Hurlbutt and Balio, JJ.