The following papers read on this motion:Notice of Motion/Supporting Exhibits XAffirmation in Opposition XReply Affirmation X Defendant, Thomas Urena (Urena), moves this court pursuant to CPLR §3212, for an order him granting summary judgment and dismissing the complaint. Plaintiff, Maribell Pacan (Pacan), opposes the motion. This action arises from a motor vehicle accident that occurred on September 24, 2017, at 1 Merrick Road, Rockville Centre, County of Nassau. Pacan commenced this action by the service of a summons and complaint dated January 2, 2018. Issue was joined by the service of an answer dated February 1, 2018.On the date of the accident, Urena had brought his car to a car wash located at 1 Merrick Road, Rockville Centre. Upon arriving at the car wash, he exited his vehicle and turned it over to a car wash employee, Castillo Benitez. While Mr. Benitez was operating Urena’s vehicle, he allegedly hit Pacan who was also an employee of the car wash and was working at the time. While it is undisputed that Mr. Bentiez cannot be sued due to Worker’s Compensation Law (WCL) §29(6), Pacan seeks to hold Urena vicariously liable, as the vehicle owner, pursuant to Vehicle and Traffic Law (VTL) §388. Urena now moves for summary judgment, arguing that WCL 29(6) shields him from liability.It is well settled that in a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]; Friends of Animals, Inc. v. Associates Fur Mfrs., 46 NY2d 1065 [1979]; Zuckerman v. City of New York, 49 NY2d 5557 [1980]; Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]).The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegard v. New York University Medical Center, 64 NY2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York, 49 NY2d 5557 [1980], supra). The primary purpose of a summary judgment motion is issue finding not issue determination, Garcia v. J.C. Duggan, Inc., 180 AD2d 570 (1st Dept. 1992), and it should only be granted when there are no triable issues of fact (see also Andre v. Pomeroy, 35 N2d 361 [1974]).In support of the motion, Urena submits his affidavit where he explains that the accident occurred after he had exited his car and turned it over to Mr. Benitez. The question of whether Urena can be held liable therefore can only be answered by analyzing the interplay between WCL §29(6) and VTL §388. As cited to by Urena, in 2014 the New York Court of Appeals certified a question from the United States Second Circuit Court of Appeals on this very issue, and found that under analogous circumstances, the WCL would shield the owner. (Isabella v. Hallock, 22 NY3d 788 [2014]).In Isabella, Mr. Isabella was the passenger in a car driven by his co-worker, Ms. Oldenborg. On their way back to work from a business meeting, their car collided with a car driven by Ms. Hallock. Mr. Isabella was injured but WCL 29(6) prevented him from suing Ms. Oldenborg for his injuries. Mr. Isabella then sued Ms. Hallock and her husband, who owned the car, for personal injuries. The Hallocks then brought a third party action for contribution and indemnification against Mr. Koubeck, Oldenborg’s husband and owner of the car Mr. Isabella was in at the time of the accident. The underlying question was whether Mr. Koubeck could be held liable for contribution as owner of the vehicle when the driver of the vehicle was shielded by the WCL. The Court of Appeals found he could not.In reaching its determination, the court reviewed its finding in Rauch v. Jones, 4 NY2d 592 [1958]. In Rauch, the passenger in a tractor-trailer being driven by his co-employee was injured in an accident where the driver was negligent. The passenger sued the owner of the tractor-trailer, but the Court of Appeals found the owner was shielded by the WCL:The unmistakable intention of the Legislature to make only one remedy available to an employee injured in the course of his employment by a fellow employee is manifested by the use of the emphatic language ‘exclusive remedy’. The statute, having deprived the injured employee of a right to maintain an action against a negligent co-employee, bars a derivative action which necessarily is dependent upon the same claim of negligence for which the exclusive remedy has been provided. Id. at 596.Herein, the facts are somewhat different in that Pacan was not a passenger, but was hit by the vehicle that injured her. However, this court finds that the rule still applies. Pacan is prevented from suing Benitez as he is her co-worker, leaving the WCL as her exclusive remedy. The action against Urena is based upon the same claim of negligence that Pacan is precluded from making against Benitez. Based upon the holdings of Isabella and Rauch, the court finds Urena would therefore be shielded from liability. As such, Urena has established entitlement to summary judgment as a matter of law. The burden shifts to Pacan to raise a material issue of fact requiring a trial of the action. (Zuckerman v. City of New York, supra).In opposition, Pacan offers only the affirmation of counsel and no admissible evidence. Absent admissible evidence, Pacan is unable to raise a material issue of fact. (Giwa v. Bloom, 154 AD3d 921 [2d Dept. 2017]). Pacan also argues that she should be given the opportunity to complete discovery and depose Urena before this issue is resolved. However, Pacan has neglected to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. “The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion” (Hanover Ins. Co. v. Prakin, 81 AD3d 778 [2d Dept. 2011]; see also Essex Ins. Co. v. Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept. 2010]; Peerless Ins. Co. v. Micro Fibertek, Inc., 67 AD3d 978 [2d Dept. 2009]; Gross v. Marc, 2 AD3d 681 [2d Dept. 2003]).Accordingly, it is herebyORDERED, that Urena’s motion for summary judgment is GRANTED. The complaint is dismissed.This constitutes the Decision and Order of the Court.Dated: July 20, 2018Mincola, N.Y.
