Paul Faulk v Bernard L. Vital

Faulk v Vital 2005 NY Slip Op 02217 [16 AD3d 544] March 21, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 18, 2005

Paul Faulk et al., Respondents,
v
Bernard L. Vital, Also Known as Louis B. Vital, Defendant, and Nissan Motor Acceptance Corporation, Appellant.

—[*1]In an action to recover damages for personal injuries, etc., the defendant Nissan Motor Acceptance Corporation appeals from so much of an order of the Supreme Court, Nassau County (DeMaro, J.), entered March 3, 2004, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellant's contention, it failed to submit evidence sufficient to establish its entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Triable issues of fact exist as to whether the defendant driver intentionally struck the injured plaintiff and whether he was a permissive operator of the vehicle (see generally Purdie v Ingram, 18 AD2d 667 [1962]; cf. Beddingfield v LaBarbera, 276 AD2d 575 [2000]; Merchants Mut. Ins. Co. v Arzillo, 98 AD2d 495 [1984]). H. Miller, J.P., Ritter, Mastro and Lifson, JJ., concur.