Opinion
2001-06119.
Argued March 22, 2002.
April 29, 2002.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bruno, J.), dated June 15, 2001, which denied her motion to compel certain discovery and granted the cross motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.
Jay H. Tanenbaum, New York, N.Y. (Michael Weiner and Lawrence Warshaw of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers of counsel; Adam M. Drexler on the brief), for respondent.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, with costs.
The defendant City of New York made out a prima facie case with respect to its contention that its employee, the defendant Daniel Johnson, was driving a vehicle it owned without its permission or consent at the time of the plaintiff's injury (see Vehicle Traffic Law § 388; Barrett v. McNulty, 27 N.Y.2d 928; Naidu v. Harwin, 281 A.D.2d 525; Headley v. Tessler, 267 A.D.2d 428). In opposition to the City's cross motion for summary judgment, the plaintiff failed to raise a triable issue of fact as to whether the City was vicariously liable for Johnson's alleged negligence (cf. Riviello v. Waldron, 47 N.Y.2d 297, 302-303; Lundberg v. State of New York, 25 N.Y.2d 467, 470-471; Overton v. Ebert, 180 A.D.2d 955). Furthermore, the plaintiff did not demonstrate that "facts essential to justify opposition may exist but cannot be stated" (CPLR 3212[f]). Therefore, she was not entitled to denial of the cross motion on the basis that further discovery was necessary (see Berrios v. Kobal, 262 A.D.2d 514; Mazzaferro v. Barterama Corp., 218 A.D.2d 643).
The plaintiff's remaining contentions are without merit.
ALTMAN, J.P., McGINITY, TOWNES and CRANE, JJ., concur.