Hawthorne v. City of New York

44 A.D.3d 544, 844 N.Y.S.2d 35

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (John A. Barone, J.), entered May 19, 2006, which denied defendant-appellant’s motion for summary judgment dismissing the complaint and cross claim as asserted against him, unanimously affirmed, without costs.

Denial of summary judgment was appropriate since appellant failed to make a prima facie showing of entitlement to judgment as a matter of law. Plaintiff was bitten by a dog in the lobby of a building, and the record is replete with triable factual issues, including, inter alia, who owned the dog, whether appellant lived in the same apartment as the dog, and who was in control of the dog. Appellant’s conclusory statements that he had no connection to the subject dog were insufficient to meet his burden, and his belated attempt to cure the deficiencies in his prima facie showing by raising new facts and arguments in reply was improper (see Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517 [2006]). Summary judgment was also properly denied as premature in light of the minimal discovery that has taken place (see George v New York City Tr. Auth., 306 AD2d 160, 161 [2003]). Concur—Mazzarelli, J.P., Marlow, Sullivan, Gonzalez and McGuire, JJ.