
    Mary V. Rye, as Administratrix of the Estate of Wayne B. Rye, Deceased, Respondent, v. Mary Kolter, Individually and as Administratrix of the Estate of Timothy M. Kolter, Deceased, Appellant.
   Order unanimously affirmed, with costs. Memorandum: Plaintiff’s intestate, an Ontario resident, was fatally injured while a passenger in an automobile owned by an Ontario resident and operated by another Ontario resident in an accident which occurred in New York State with an. automobile owned and operated by a New York resident. ]f Special Term held that section 388 of the Vehicle and Traffic Law which provides that, “Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries * * * resulting from negligence ” prevented the Canadian defendant from pleading the Ontario Guest Statute. We find that section inapplicable since its purpose is to impute the negligence of the driver to an absentee owner (Continental Auto Lease Corp. v. Campbell, 19 N Y 2d 350). It does not establish a choice of law rule for accidents occurring in New York State. (Cf. Farber v. Smolack, 20 N Y 2d 198.) We affirm, however, on the authority of Fosillo v. Matthews (30 A D 2d 1049, affg. 59 Misc 2d 539, mot. for lv. to app. den. 23 N Y 2d 646, mot. for rearg. den. 24 N Y 2d 740) where this court held that the Massachusetts Guest Statute should not be applied where an accident involving Massachusetts residents and a Massachusetts automobile, occurred in New York State. (Appeal from order of Niagara Special Term, denying motion to serve amended answer in negligence action.) Present — Marsh, J. P., Witmer, Moule, Cardamone and Henry, JJ.  