Short v. Macali 42 A.D.2d 659

— Appeal by the defendant from an order of the Supreme Court, entered in Tompkins County on January 29, 1973, which granted plaintiffs’ motion to amend their complaint and bill of particulars. This is a negligence action. *660Plaintiff Deborah E. Short sued for personal injuries and property damage, alleging that she was the owner of the vehicle involved in the accident in which she was a passenger, and her husband, the coplaintiff, was the operator. Defendant admitted ownership in his answer. During the trial plaintiff Deborah Short moved to amend the complaint and bill of particulars to allege joint ownership of the vehicle with her husband. The trial court granted the motion and also directed a mistrial. Defendant appeals from that part of the order granting plaintiffs the right to amend the complaint and bill of particulars. The question presented is whether the registered owner of a motor vehicle may deny actual ownership in order- to avoid the imputed negligence of the operator of said vehicle, when he is seeking to impose liability. We have previously passed on this precise issue and held that such registered owner suing for damages due to personal injuries when present in the car as a passenger may not deny actual ownership to escape'the imputed-negligence of the driver. {Jay v. Miner Trucking Go., 14 A D 2d 398, mot. for iv. to opp. den. 11 N Y 2d 641.) Plaintiffs urge on this appeal, however, that we overturn as arbitrary and unfair the principle established in Gochee v. Wagner (257 N. Y. 344), and thereby obviate the necessity of applying the rule promulgated in the Jay ease. The Court of Appeals has consistently adhered to its ruling in the Gochee case, most recently in Kleinman v. Frank (28 N Y 2d 603). If Gochee is to be overruled or its holding modified, we are of the opinion that such a determination is for the Court of Appeals. Consequently, the order must be reversed. Order, insofar as appealed from, reversed, on the law, with costs. Herlihy, P. J., Staley, Jr., Sweeney, Kane and Reynolds, JJ., concur.