Gomez v. Superior Fleet Maintenance Inc.

172 A.D.2d 1082, 569 N.Y.S.2d 260, 1991 N.Y. App. Div. LEXIS 6232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1991
• Status: Published

Opinion

Order unanimously reversed on the law with costs, motion granted and amended complaint dismissed as against defendant Vitlo. Memorandum: Plaintiff’s verified amended complaint alleged that he was bitten by a Doberman Pinscher on July 25, 1988 and that the dog was owned and harbored by defendant Superior Fleet Maintenance and/or defendant Vitlo, its corporate secretary. Defendant Vitlo’s affidavit supporting his motion for summary judgment asserted that Superior Fleet Maintenance owned and harbored the dog at a service station and that defendant Vitlo was not at the service station at the time that plaintiff allegedly was bitten. Further, Superior Fleet Maintenance, in its verified answer, admitted to owning and harboring the dog. Plaintiff’s affidavits in opposition assert only conclusions that there are questions of fact concerning whether Vitlo owned and harbored the dog. This is insufficient to raise an issue of fact requiring trial against defendant Vitlo and he is entitled to summary judgment dismissing the complaint against him (see, Nidzyn v Stevens, 148 AD2d 592, 593; Zwinge v Love, 37 AD2d 874; see also, Zuckerman v City of New York, 49 NY2d 557). (Appeal from Order of Supreme Court, Queens County, Le Vine, J.— Summary Judgment.) Present—Doerr, J. P., Boomer, Pine, Lawton and Lowery, JJ.