Santorio v. Diaz

Appeal from an order of the Supreme Court at Special Term (Harlem, J.), entered May 12,1981 in Schenectady County, which denied a motion for summary judgment dismissing the complaint. Michael Diaz, Jr., the driver, was involved in a one-car accident in which plaintiff, his passenger, suffered injuries. She instituted a negligence action against the owner, the driver’s father, Michael A. Diaz, Sr. Although the driver is a named defendant, he apparently was never served and is not a party to this action. The motion for summary judgment made by Michael A. Diaz, Sr., has as its predicate the claim that the driver, whose license had been revoked earlier, did not have the owner’s permission or consent, express or implied, to use the vehicle. Both father and son submitted affidavits attesting to that fact. Special Term’s denial of the motion prompted this appeal. Summary judgment is unavailable when, as here, the salient facts underlying the motion are solely within the knowledge of the moving party (J & J Log & Lbr. Corp. v Hildebrand Mach. Co., 56 AD2d 910; Utica Sheet Metal Corp. v Schecter Corp., 25 AD2d 928). Instead, the movant’s version should be subjected to cross-examination at trial (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3212:19, pp 438-439). Order affirmed, with costs. Main, J. P., Casey, Yesawich, Jr., Weiss and Levine, JJ., concur.