Lau Lee Chan v. Mikhalov

279 A.D.2d 456, 719 N.Y.S.2d 585, 2001 N.Y. App. Div. LEXIS 181

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Hall, J.), dated March 30, 2000, as granted that branch of the motion of the defendants Rita Mushaev, as mother and natural guardian of Laura Mushaev, and Rita Mushaev individually, which was for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

In opposition to the respondents’ motion, in which they made a prima facie showing of their entitlement to summary judgment dismissing the complaint insofar as asserted against them, the plaintiffs failed to come forward with proof sufficient to raise an issue of fact. The plaintiffs failed to demonstrate that the dog which allegedly caused the injuries to the plaintiff Lau Lee Chan had ever bitten anyone or exhibited any vicious propensities, or that the respondents exercised any dominion or control over it.

We note that the affidavit of the plaintiffs’ daughter in opposition to the motion should not have been considered, since the plaintiffs did not answer the respondents’ demand for notice witnesses, and offered no excuse for their failure to do so (see, Ortega v New York City Tr. Auth., 262 AD2d 470). Bracken, Acting P. J., Santucci, Altman and Florio, JJ., concur.