Opinion
June 22, 1998
Appeal from the Supreme Court, Suffolk County (Doyle J.).
Ordered that the order is affirmed, with one bill of costs.
The plaintiff Herbert M. Rosenberg was injured when he was struck by an automobile driven by the defendant Gilbert Dewynter and owned by the defendant Lewis A. Mazzone. Mazzone submitted sufficient proof on his motion for summary judgment to establish that his vehicle was being driven without his permission or consent at the time the injured plaintiff was struck (see, Leonard v. Elite Investigations, 221 A.D.2d 322; Guerra v. Kings Plaza Leasing Corp., 172 A.D.2d 583; see also, Walls v. Zuvic, 113 A.D.2d 936). Under the circumstances, Mazzone was not liable for Rosenberg's injuries (see, Vehicle and Traffic Law § 388 Veh. Traf. [1]; Leonard v. Elite Investigations, supra). Rosenberg failed to submit evidentiary proof in admissible form sufficient to rebut Mazzone's prima facie entitlement to summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; Friends of Anamals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068; Leonard v. Elite Investigations; supra; Aetna Cas. Sur.Co. v. Santos, 175 A.D.2d 91; Guerra v. Kings Plaza Leasing Corp., supra).
In addition, since the record is devoid of any evidence indicating that Dewynter was employed by K.D.'s Auto Body, Inc. (hereinafter K.D.'s), we find that the contentions raised by the plaintiffs in opposition to K.D.'s motion for summary judgment are bare, conclusory allegations which are insufficient to defeat its motion (see, Moxon v. Barbour, 106 A.D.2d 558).
The plaintiffs' remaining contentions are not properly before this Court as they are based on facts which are dehors the record and have been raised for the first time on appeal (see, Matter of Allstate Ins. Co. v. Bieder, 212 A.D.2d 693; Martin v Manhattan Bronx Surface Tr. Operating Auth., 198 A.D.2d 160).
Rosenblatt, J. P., Copertino, Goldstein and Luciano, JJ., concur.