Opinion
October 1, 1999
Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted plaintiff's motion for partial summary judgment on liability and denied defendant's cross motion for a scheduling order. Plaintiff commenced this action pursuant to Vehicle and Traffic Law § 385 (2) seeking to recover for the damage caused by defendant's flatbed truck when it struck the underside of a New York State bridge over Route 219 in Orchard Park. Section 385 (2) provides in relevant part that "[a]ny damage to * * * bridges * * * resulting from the use of a vehicle exceeding [13] feet in height where such excess height is the proximate cause of the accident shall be compensated for by the owner and operator of such vehicle." Plaintiff met its initial burden of establishing entitlement to partial summary judgment as a matter of law, and defendant failed to raise an issue of fact. Although defendant contends that the motion is premature (see, CPLR 3212 [f]), it failed to demonstrate that discovery would give rise to an identifiable issue of fact (see, Gardner v. Honda Motor Co., 214 A.D.2d 1024, 1025). Furthermore, the action has been pending for more than two years, and defendant offers no explanation for its failure to investigate and ascertain the facts (see, Rivera v. Our Lady of Knox R. C. Church, 197 A.D.2d 764, 765).
PRESENT: PINE, J. P., WISNER, HURLBUTT, SCUDDER AND CALLAHAN, JJ.