We agree with the conclusion reached by Special Term but comment briefly on appellant’s contention that under decisional law implementing certain provisions of the Partnership Law liability might be imposed on respondent for the alleged tortious acts of the codefendant—the alleged copartner of respondent.
The general principle is recognized that in the field of tort liability members of a partnership are jointly and severally liable for a tort committed in the course of the partnership business (43 N. Y. Jur., Partnership, § 141; Caplan v. Caplan, 268 N. Y. 445). The difficulty is that plaintiff has supplied no factual proof to bring herself within this legal principle. Respondent’s motion called upon plaintiff to offer something more than a repetition of the conclusory statements in the amended complaint. (Indig v. Finkelstein, 23 N Y 2d 728; Gnozzo v. Marine Trust Co., 258 App. Div. 298, affd. 284 N. Y. 617.)
*376The statute (CPLR 3212, subd. [f]) authorizes the court to grant a continuance of a motion for summary judgment to permit the party moved against to obtain affidavits and disclosure to be used in opposition to the motion. No such request was here made. In her opposing affidavit plaintiff simply requested denial of the motion because of her “ belief ” that pretrial disclosure would corroborate her conclusory statements made in the pleading and the affidavit.
Furthermore, the motion was made about three years after the date of the accident. Not irrelevant is the fact that defendant is her husband and respondent her brother-in-law. If proof existed to support the allegations of her pleading, she had several years within which to obtain it. Thus, the rule is here applicable that the motion should not be denied where the failure of the party moved against to gather the facts to support her contentions is due to her own voluntary inaction, (cf. Silinsky v. State-Wide Ins. Co., 30 A D 2d 1.)
The real reason for appellant’s dilatory tactics and her failure to submit any facts in support of her beliefs are supplied by the •overwhelming factual proof that at the time of the accident the vehicle jointly owned by defendants was not being used in the partnership business. These are the facts. Respondent and defendant (plaintiff’s husband) were joint owners of the vehicle. On the day of the accident respondent was at his regular place of employment. He had parked the automobile in the yard of a nearby gas station and left the key in the ignition switch to facilitate movement thereof by the service station owner. Defendant, an unlicensed operator, took the vehicle and drove to his home with the intention of stopping his estranged wife (plaintiff) from removing personalty from the home. The vehicle struck the wife. Defendant husband in a writing admits having no operator’s license; that he took the car without asking his brother 11 as I knew he would not have allowed me to use it without an operator’s license.” In summary, there is no proof that the vehicle was being used on partnership business or with the permission of respondent. The proof is to the contrary.
The judgment and order should be affirmed, without costs.