Mumuni’s motion for summary judgment should have been granted. There is no proof that Saday Allhassan drove Mumuni’s car with his express or implied permission.
This is a personal injury action where plaintiff was a pas*192senger in a car involved in an accident with a minivan owned by defendant Mumuni and operated by defendant Saday Allhassan.
Mumuni had arranged to sell his minivan but was going to be out of the country before the sale was completed. On or before February 19, 2002, he left the minivan and the signed title with his friend, Osmanu Allhassan, who was to turn the vehicle and title over to the purchaser and collect the money for Mumuni.
On March 2, 2002, Allhassan’s son, Saday, who was living at college, came home to do some errands. There was no one at home and, letting himself in, he saw the minivan keys on a table. Saday testified at his deposition that he did not know who owned the minivan and no one had given him permission to drive it, that his father owned no vehicle except for a taxi cab he used for business and had never let him use any vehicle in the past, and that he presumed the minivan was his because his father had previously told him that he would buy him a car. However, Saday conceded that his father never actually told him that the minivan was his and in fact never told him that he had purchased a car for him. Furthermore, Saday had not even spoken to his father for two weeks preceding the accident. Based on this testimony, it appears that Saday never received permission from his father to use the vehicle. Rather, on his own, he took the keys and drove off. And if Saday did not have permission from his father, he would not have had it from Mumuni.
It is well settled that Vehicle and Traffic Law § 388 creates a strong presumption that the use of a vehicle is with the permission of the owner and that this presumption is rebuttable only by substantial evidence to the contrary (Leotta v Plessinger, 8 NY2d 449, 461 [I960]; Blunt v Zinni, 32 AD2d 882 [1969], affd 27 NY2d 521 [1970]). Substantial evidence was presented here. No one claims that Mumuni gave Saday express permission to drive the van. As for implied permission, plaintiff argues that although Osmanu Allhassan understood that Mumuni gave him the van for the purpose of transferring it to the new owner, Mumuni did not impose any restrictions on its use. Such circumstances do not tend to show Mumuni’s implied permission for Saday to drive the van when Saday only had a learner’s permit, not a valid New York State driver’s license, and there is no evidence that Mumuni ever impliedly gave permission for an unlicensed operator to drive his van.
The majority places great reliance on Brindley v Krizsan (18 AD2d 971 [1963], affd 13 NY2d 976 [1963]) for the proposition that liability can attach even where the operator was unlicensed.
*193However, the majority’s reliance is belied by the fact that the operator of the vehicle in Brindley had the express permission of the person to whom the car had been entrusted.* In this case, even Osmanu Allhassan concedes that he did not give permission, express or implied, to his son to operate the vehicle. In his affidavit, Osmanu avers that his son mistakenly thought the keys on the table were to the vehicle he had discussed purchasing. This lack of a connection between Saday and his father is fatal to plaintiffs case.
“[A] finding of constructive consent and its attendant liability under section 388 requires a consensual link between the negligent operator and one whose possession of the vehicle is authorized. Otherwise, implied consent under section 388 (1) would amount to strict liability—a result clearly at odds with the section and its purposes” (Murdza v Zimmerman, 99 NY2d 375, 381 [2003]).
Notwithstanding the laudatory intent of Vehicle and Traffic Law § 388 (1), the facts must support the liability. Mumuni adduced substantial evidence that Saday Allhassan operated the minivan without his permission, express or implied, and plaintiff failed to adduce any facts tending to show the contrary, other than Osmanu’s disputed testimony that Mumuni entrusted the van to him without any express restrictions on its use. Such testimony, if credited, is insufficient to raise an issue of fact as to whether Mumuni impliedly agreed to permit Osmanu’s unlicensed family member to operate the van. Therefore, Mumuni’s motion for summary judgment should have been granted and the complaint dismissed as against Mumuni.
Saxe and Nardelli, JJ., concur with Friedman, J.; Tom, J.P., and Sweeny, J., dissent in a separate opinion by Sweeny, J.
Order, Supreme Court, Bronx County, entered December 24, 2003, affirmed, without costs.
It should be noted that each of the other cases cited by the majority is distinguished by crucial facts glaringly absent in our case, e.g., permission given on previous occasions (Comstock v Beeman, 24 AD2d 931 [1965], affd 18 NY2d 772 [1966]); evidence of express permission given to driver (Schrader v Carney, 180 AD2d 200 [1992]).