Webb v. Larmond

287 A.D.2d 616, 731 N.Y.S.2d 861, 2001 N.Y. App. Div. LEXIS 9845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 22, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an amended order of the Supreme Court, Kings County (Rappaport, J.), dated November 22, 2000, as granted that branch of the motion of the defendants Carlton Larmond and Joan Larmond which was for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the amended order is reversed insofar as appealed from, on the law, with costs, that branch of the motion is denied with leave to renew upon the completion of discovery, and the complaint is reinstated insofar as asserted against the respondents.

The plaintiff was allegedly injured when bitten by a dog. He commenced this action against, among others, the defendants Carlton Larmond and Joan Larmond, the owners of the building where the dog allegedly was kept (see, Strunk v Zoltanski, 62 NY2d 572). The Supreme Court, inter alia, granted that branch of the respondents’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. We reverse the amended order insofar as appealed from.

In opposition to the respondents making out a prima facie case for their entitlement to summary judgment, the plaintiff demonstrated that facts essential to justify opposition to the motion may exist but could not then be stated (see, CPLR 3212 [f]; Caracci v McChesney, 196 AD2d 522). Thus, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the respondents should be denied, with leave to renew upon the completion of discovery. Ritter, J. P., Goldstein, Friedmann, Feuerstein and Crane, JJ., concur.