Mata v. U.S. Electroplating Corp.

—In an action to recover damages for personal injuries, etc., the defendant U.S. Electroplating Corp. appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 25, 1999, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiffs cross-appeal from so much of the same order as denied their cross motion for partial summary judgment against the defendant U.S. Electroplating Corp. on the issue of permissive use of the vehicle involved in the subject accident. Ordered that the order is affirmed, without costs or disbursements. The Supreme Court properly denied the motion and cross motion. There is an issue of fact as to whether the defendant Ed Campanella, the operator of the truck owned by the defendant U.S. Electroplating Corp., was using the truck with the owner’s consent, either expressed or implied, at the time of the subject accident (see, Vehicle and Traffic Law § 388 [1]; Leotta v Plessinger, 8 NY2d 449, 461; Smith v Peterson Trust, 254 AD2d 479; Mills v Marquez, 251 AD2d 304). Goldstein, J. P., McGinity, Luciano and Smith, JJ., concur.