Chang v. Fernandez

170 A.D.2d 936, 567 N.Y.S.2d 379, 1991 N.Y. App. Div. LEXIS 2462

Opinion

Crew III, J.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Green, J.), entered January 17, 1990 in Orange County, which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff was a passenger in an automobile operated by Robert Fernandez when it was involved in an accident. As a result of injuries allegedly sustained by plaintiff, she commenced this action against defendant, the owner of the automobile. In support of her motion for summary judgment, defendant relies on her deposition testimony as well as a sworn affidavit in which she avers that the driver, her brother, did not have her permission or consent, express or implied, to use her automobile. Supreme Court denied her motion, giving rise to this appeal. We have previously held that summary judgment is unavailable where, as here, the facts underlying the motion are solely within the knowledge of the moving party. In such case the movant’s version should be subjected to cross-examination at trial (Santorio v Diaz, 86 AD2d 926). Accordingly, Supreme Court’s order is affirmed.

Order affirmed, with costs. Mahoney, P. J., Weiss, Yesawich, Jr., Crew III, and Harvey, JJ., concur.