Opinion
October 15, 1996.
Order, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about February 13, 1996, which, inter alia, dismissed the complaint as against defendant Columbo and denied plaintiffs cross motion for summary judgment against defendants John Durante, Inc. and Janlin Leasing Corp., unanimously affirmed, with costs.
Before: Milonas, J. P., Wallach, Nardelli, Tom and Mazzarelli, JJ.
Issues of fact exist as to whether defendant John Durante Inc. employed defendant Columbo at the time of plaintiffs accident and, if so, whether Columbo was driving the motor vehicle with Durante's permission (Vehicle and Traffic Law § 388). Columbo's assertions ten years later that he had been employed by Durante at the time of the accident contradict a statement he executed in 1987. Moreover, Columbo's deposition testimony is inconclusive as to the identity of his employer as of November 1985. It is true that John Durante, Inc., aside from denying that Columbo had been driving the van with its permission, has not otherwise rebutted Columbo's assertions. However, given the deficient nature of the proof submitted by plaintiff on his cross motion, summary judgment is not warranted. "While it is undisputed that the van was leased to John Durante, Inc. at the time of the accident, questions of fact exist concerning whether it was being driven for another party, also a trucking company, which leased garage space to John Durante, Inc. We have considered plaintiff s remaining contention and find it to be without merit.