Leonard v. Elite Investigations, Ltd.

—In an action to recover damages for personal injuries, the defendant Elite Investigations, Ltd., appeals from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), dated April 12, 1994, as, upon granting the plaintiffs motion to vacate an order of the same court, dated January 24, 1994, entered upon his default in responding to a prior motion by Elite Investigations, Ltd., for summary judgment dismissing the complaint 323 insofar as it is asserted against it, denied the prior motion for summary judgment. Ordered that the order is reversed insofar as appealed from, on the law, with costs, the prior motion for summary judgment is granted, and the complaint is dismissed insofar as it is asserted against the defendant Elite Investigations, Ltd. The record shows that the appellant Elite Investigations, Ltd. (hereinafter Elite) submitted sufficient proof on its motion for summary judgment to establish that the vehicle owned by it was being driven without its permission and consent at the time the plaintiff was struck and injured. Under the circumstances, Elite was not liable for the plaintiff’s injuries (see, Vehicle and Traffic Law § 388 [1]; Albouyeh v County of Suffolk, 62 NY2d 681, 683). The plaintiff failed to submit evidentiary proof in admissible form sufficient to rebut Elite’s prima facie entitlement to summary judgment (see, e.g., Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557, 562; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Bracken, J. P., O’Brien, Ritter and Friedmann, JJ., concur.