Grant v. Toyota

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered July 13,1995, which, inter alia, denied defendant Presmont’s motion to dismiss the complaint pursuant to CPLR 3211 and 3212, unanimously affirmed, without costs.

The complaint sufficiently states a cause of action against defendant Presmont for negligent maintenance of the offending vehicle. Denial of summary judgment was also proper since defendant failed to establish her defenses to the action as a matter of law by tender of evidentiary proof in admissible form (see, Zuckerman v City of New York, 49 NY2d 557, 562). Moreover, plaintiffs, with the aid of discovery, may be able to establish defendant-appellant rented the vehicle for a sufficient period of time to be deemed an "owner” under Vehicle and Traffic Law §§ 128 and 388 (3). Concur — Rosenberger, J. P., Ellerin, Kupferman, Nardelli and Mazzarelli, JJ.