Justice Jack Battaglia
Silvera drove a vehicle owned by Kruger and struck Keller and Hudson. Plaintiffs alleged Silvera was negligent in the operation of the vehicle, and used it with Kruger’s permission. The court previously granted plaintiffs summary judgment on the issue of liability against Kruger on the ground that his answer to a complaint and cross-claim did not address plaintiffs’ allegations Silvera used the vehicle with Kruger’s permission. As such, the allegation was deemed admitted, and the court determined Silvera was negligent in the operation of the vehicle, granting plaintiffs summary judgment on the issue of liability against Kruger under Vehicle and Traffic Law §388, which imposed liability on the owner of a vehicle based on the negligence of the driver. Kruger now sought leave to amend his answer to deny that he gave Silvera permission to operate his vehicle, and upon same, leave to renew his opposition to plaintiffs’ motion for summary judgment. The court stated once summary judgment was granted, the matter was res judicata, thus, the court’s decision as to liability based on the issue of permissive use was res judicata, and the court was without authority to allow amendment of a pleading on that issue. Hence, Kruger’s motion, made on the “eve of trial,” was denied.
