The Plaintiff commenced this action on July 30, 2007, seeking indemnification in the sum of $1,700.00. According to the Complaint, the Defendant rented a car from the Plaintiff on May 30, 2006. The Complaint further alleges that on June 1, 2006 the Defendant allowed someone who was not authorized by the terms of the rental agreement to operate the vehicle and that the individual had an accident with one Barbara Daniels, a non-party herein, causing $1,700.00 worth of damage to her vehicle, which the Plaintiff paid.

The Plaintiff has demonstrated proper service of the Summons and Complaint and compliance with CPLR § 3215 (g)(3)(i), as well as the Defendant's failure to answer. As a consequence, the Plaintiff now moves for the entry of a default judgment. The Defendant has not opposed this motion.

The Plaintiff's proof of jurisdiction and the Defendant's default does not impose upon the court "a mandatory, ministerial duty to grant a motion for a default judgment[.]" Dyno v. Rose, 260 AD2d 694, 698, 687 NYS2d 497, 501 (3rd Dept.1999); See also: Resnick v. Lebovitz, 28 AD3d 533, 813 NYS2d 480 (2nd Dept. 2006); Joosten v. Gale, 129 AD2d 531, 514 NYS2d 729 (1st Dept.1987) To succeed, a plaintiff must demonstrate that it possesses a viable cause of action, Woodson v. Mendon Leasing Corp., 100 NY2d 62, 760 NYS2d 727 (2003); Cree v. Cree, 124 AD2d 538, 507 NYS2d 683 (2nd Dept. 1986); Resnick v. Lebovitz, supra ., by submitting an affidavit of facts and/or a complaint verified by a party with personal knowledge, CPLR § 3215(f); Fiorino v. Yung Poon Yung, 281 AD2d 513, 721 NYS2d 803 (2nd Dept. 2001); Parratta v. McAllister, 283 AD2d 625, 725 NYS2d 854 (2nd Dept. 2001); Peniston v. Epstein, 10 AD3d 450, 780 NYS2d 916 (2nd Dept. 2004), "so the court has nonhearsay confirmation of the [*2]factual basis constituting a prima facie case[.]" State v. Williams, 44 AD3d 1149, 1151, 843 NYS2d 722, 724 (3rd Dept. 2007)

In support of its motion, the Plaintiff submits an affirmation by counsel, along with the Complaint, verified by counsel, which are of no probative value herein. Ritzer v. 6 East 43rd Street Corp., 47 AD3d 464, 850 NYS2d 55 (1st Dept. 2008); Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 (2nd Dept.1996); Mullins v. DiLorenzo, 199 AD2d 218, 606 NYS2d 161 (1st Dept. 1993)

The Plaintiff also submits the affidavit of its Vehicle Repair Manager, Michael Neglia, who does nothing more than discuss, in conclusory terms, the alleged cost of repair of the vehicle the Defendant allegedly rented from the Plaintiff. This affidavit has no relevance to this action, which seeks to recover the alleged cost of repair of a third party's vehicle.

The only other affidavit submitted by the Plaintiff is that of it Loss Control Manager, John Carmichael, who alleges that the vehicle of Barbara Daniels was damaged as "a direct and proximate result of the negligence of the Defendant TODD RUSSO and the unauthorized driver[.]" (Carmichael Affidavit 3/31/08, ¶ 4) Mr. Carmichael neither alleges that he has any personal knowledge of this alleged fact, nor even describes the source of this statement. This conclusory allegation of the Defendant's negligence cannot support this motion. Beaton v. Transit Facility Corp., 14 AD3d 637, 789 NYS2d 314 (2nd Dept. 2005); Cohen v. Schupler, __ AD3d __, 856 NYS2d 870 (2nd Dept. 2008) Similarly, the police report submitted by counsel is not in evidentiary form and insufficient to establish the Defendant's negligence. Johnson v. Lutz, 253 NY 124, 170 N.E. 517 (1930); State Farm Mutual Automobile Insurance Company v. Langan, 18 AD2d 860, 793 NYS2d 663 (2nd Dept. 2005); Pector v. County of Suffolk, 259 AD2d 605, 686 NYS2d 789 (2nd Dept. 1999) Mr. Carmichael's allegation that the Plaintiff paid Ms. Daniels for the damage allegedly sustained by her vehicle is also unsupported by any proof. Like an action for subrogation, the Plaintiff here seeks indemnification for payments allegedly made to a third party. Without such proof of payment the Plaintiff cannot succeed. cf. Winkelmann v. Excelsior Insurance Company, 85 NY2d 577, 626 NYS2d 994 (1995); Antonitti v. City of Glen Cove, 266 AD2d 487, 698 NYS2d 722 (2nd Dept. 1999). Mr. Carmichael's final allegation, that the Defendant is contractually liable to indemnify the Plaintiff for damages allegedly caused by a driver who was authorized by the Defendant to drive the Plaintiff's vehicle, although the lease agreement proscribed such use, is without merit.

VTL § 388(1) provides, in pertinent part, "Every owner of a vehicle used or operated in this state shall be liable and responsible for ... injuries to ... property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner." See: Morris v. Snappy Car Rental, 84 NY2d 21, 614 NYS2d 362 (1994); ELRAC v. Ward, 96 NY2d 58, 724 NYS2d 692 (2001). This section creates a "strong presumption" of permissive use, State Farm Mutual Automobile Insurance Company v. Ellington, 27 AD3d 567, 810 NYS2d 356 (2nd Dept. 2006); Talat v. Thompson, 47 AD2d 705, 850 NYS2d 486 (2nd Dept. 2008), "which only may be rebutted by substantial evidence to show that the vehicle was not operated with the owner's consent (citations omitted)." New York Central Mutual Fire Insurance Company v. Dukes, 14 AD3d 704, 789 NYS2d 267, 268 (2nd Dept. 2005); See also: Leotta v. Plessinger, 8 NY2d 449,209 NYS2d 304 (1960); Sargeant v. Village Bindery, Inc., 296 AD2d 395, 744 NYS2d 508 (2nd Dept. 2002)

The above notwithstanding, a distinction has been drawn between private owners [*3]and commercial lessors of vehicles. The Court of Appeals has recognized that "[d]aily, car rental agencies rent large numbers of vehicles to the general public for profit[;][t]hey are not in the same position as the private car owner who loans his car to a friend or relative for a limited purpose .... [and] should [] know[] that the probabilities of the car coming into the hands of another person [are] exceedingly great ...." Motor Vehicle Accident Indemnification Corporation v. Continental National American Group Company, 35 NY2d 260, 263-264, 360 NYS2d 859, 861-862 (1974); See also: Murdza v. Zimmerman, 99 NY2d 375, 756 NYS2d 505 (2003) Consequently, even in the face of a rental agreement which restricts the use of a vehicle to the lessee, "[a]s a commercial lessor of vehicles, ELRAC is deemed to have constructively consented to the operation of its vehicle by anyone using it with the lessee's permission (citations omitted)." Bernstein v. Diaz, 27 AD3d 602, 603, 812 NYS2d 597, 598 (2nd Dept. 2006); See also: Motor Vehicle Accident Indemnification Corporation v. Continental National American Group Company, supra .; Murdza v. Zimmerman, supra .; Forte v. New York City Transit Authority, 2 AD3d 489, 767 NYS2d 888 (2nd Dept. 2003) The Plaintiff should not now be heard to arguing that the driver of its vehicle was unauthorized when, in apparent recognition of this constructive consent, the Plaintiff acknowledges that it never raised a claim of lack of permissive use against the property damage claim made by Ms. Daniels and paid same. cf. Bernstein v. Diaz, supra . at 603-604, 812 NYS2d 597, 598 ["ELRAC never asserted lack of permission as a defense to the subrogation action brought on the personal injury claim (citations omitted)"]

Automobile rental companies are required to provide their lessees with primary insurance coverage up to the minimum liability limits provided by statute. VTL § 370(1) and (3); Lancer Insurance Company v. Republic Franklin Insurance Company, 304 AD2d 794, 759 NYS2d 734 (2nd Dept. 2003); Ruddock v. Boland Rentals, Inc., 5 AD3d 368, 774 NYS2d 50 (2nd Dept. 2004) Self-insurers, like the Plaintiff herein, are not exempt from this requirement. VTL § 370(3); Allstate Insurance Company v. Shaw, 52 NY2d 818, 436 NYS2d 873 (1980); ELRAC v. Ward, supra . The coverage provided pursuant to this section "must inure to the benefit of any permissive user of the vehicle." Lancer Insurance Company v. Republic Franklin Insurance Company, supra . at 795, 759 NYS2d 734, 736; See also: ELRAC v. Ward, supra .; Ruddock v. Boland Rentals, Inc., supra .

Pursuant to the "antisubrogation rule, "[a]n insurer has no right to subrogation against its own insured for a claim arising from the very risk for which the insured was covered. This rule applies even where the insured has expressly agreed to indemnify the party from whom the insurer's rights are derived ...." Pennsylvania General Insurance Company v. Austin Powder Company, 68 NY2d 465, 468, 510 NYS2d 67, 68 (1986); See also: Jefferson Insurance Company of New York v. Travelers Indemnity Company, 92 NY2d 363, 681 NYS2d 208 (1998); Lodovichetti v. Baez, 31 AD3d 718, 818 NYS2d 470 (2nd Dept. 2006) This rule is based, in part, on the potential for conflict of interest between the insurer and the insured, as well as to avoid allowing the insurer " to pass the incidence of the loss ... from itself to its own insured and thus avoid the coverage which its insured purchased' (Home Ins. Co. v. Pinski Bros., 160 Mont. 219, 226, 500 P.2d 945, supra )." Pennsylvania General Insurance Company v. Austin Powder Company, supra . at 471, 510 NYS2d 67, 70 "While the present case[] doe[es] not involve subrogation - since ELRAC is not seeking to step into the shoes of its insureds to sue responsible third parties - the policy behind the antisubrogation rule [would, nevertheless, preclude the Plaintiff from receiving the recovery it seeks herein]." ELRAC v. Ward, supra . at 77, 724 NYS2d 692, 700 [*4]

The antisubrogation rule notwithstanding, a car rental company may enforce the indemnification clause in its rental agreement to the extent its liability exceeds the statutory minimum amount of insurance it is required to maintain. ELRAC v. Ward, supra .; Ruddock v. Boland Rentals, Inc., supra .; Kallaitzakis v. ELRAC, Inc., 296 AD2d 531, 745 NYS2d 217 (2nd Dept. 2002); Morris v. Snappy Car Rental, supra . In apparent recognition thereof, the indemnity provision in the Plaintiff's rental agreement herein provides, in pertinent part:

8. Renter's Indemnity Provision: Renter agrees to defend, indemnify, and hold Owner harmless from all losses, liabilities, damages, injury or property damage claim presented by any third party for all amounts in excess of the minimum dollar amounts required to be maintained by the Owner by the applicable motor vehicle financial responsibility laws of the State in which this agreement of rental was executed.

While VTL § 370 once failed to require vehicle owners to maintain a minimum amount of coverage for property damage, referring only to "maximum" coverage, thereby permitting complete indemnification from the lessee, as otherwise permissible by law, ELRAC, Inc. v. Masara, 96 NY2d 847, 729 NYS2d 60 (2001); AIU Insurance Company v. ELRAC, 287 AD2d 668, 732 NYS2d 105 (2nd Dept. 2001), this section was amended in 2005, before the date of the lease agreement and accident sub judice, to explicitly provide, in pertinent part:

Every person, firm, association or corporation engaged in the business of carrying or transporting passengers for hire in any motor vehicle or motorcycle, ... , which shall be operated over, upon or along any public street or highway of the state of New York shall file with the commissioner of motor vehicles for each motor vehicle or motorcycle intended to be so operated evidence, in such form as the commissioner may prescribe, of a corporate surety bond or a policy of insurance, ... , for the payment of a minimum sum, called minimum liability on all judgments for damages because of injury to or destruction of property of others in any one accident, recovered against such person, firm, association or corporation upon claims arising out of the same transaction or transactions connected with the same subject of action, to be apportioned ratably among the judgment creditors according to the amount of their respective judgments for damage or injury caused in the operation, maintenance, use or the defective construction of such motor vehicle or motorcycle as follows:

(b) For damages for and incident to injury to or destruction of property; for each motor vehicle and each motorcycle a bond or insurance policy with a minimum liability of ten thousand dollars.

VTL § 370(1)(b) As before this amendment was enacted, this requirement applies with equal force to automobile rental companies and to self-insurers. See: VTL § 370(3) For this reason, along with a reiteration of the principle of constructive consent by the Court of Appeals, the decisions in ELRAC, Inc. v. Masara, supra . and AIU Insurance Company v. ELRAC, supra . have been been discredited. See: Murdza v. Zimmerman, supra .; Lancer Insurance Company v. Republic Franklin Insurance Company, supra .

Based upon the foregoing, even if this court were to overlook the evidentiary insufficiency of the Plaintiff's papers, it is clear that the alleged property damage of $1,700.00 claimed by the Plaintiff falls far below the $10,000.00 of property damage coverage afforded by [*5]the Plaintiff to the Defendant, pursuant to VTL § 370. Applying all of the principles of law stated hereinabove to these facts, it is clear that the Plaintiff does not possess a viable cause of action against the Defendant. Accordingly, the Plaintiff's motion is denied and the action is dismissed. See: Green v. Dolphy Construction Co., Inc., 187 AD2d 635, 590 NYS2d 238 (2nd Dept. 1992); Litvinskiy v. May Entertainment Group, Inc., 44 AD3d 627, 841 NYS2d 882 (2nd Dept. 2007)

This constitutes the decision and order of this court.

Dated: Hempstead, New York

June 10, 2008

___________________________

Andrew M. Engel

J.D.C.