Hawthorne v City of New York

Hawthorne v City of New York 2007 NY Slip Op 08000 [44 AD3d 544] October 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

Gwendolyn Hawthorne, Respondent,
v
City of New York et al., Defendants, New York City Housing Authority, Respondent, and Benjamin Aviles, Appellant.

—[*1] Altman & Altman, Bronx (Joseph A. Altman of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), for Gwendolyn Hawthorne, respondent.

Cullen and Dykman, LLP, Brooklyn (Joseph Miller of counsel), for New York City Housing Authority, respondent.

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 [*2]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.