Hawthorne v. City of New York, 1819.

• Decision Date: 25 October 2007
• Docket Number: 1819.
• Citation: 44 A.D.3d 544,2007 NY Slip Op 08000,844 N.Y.S.2d 35
• Parties: GWENDOLYN HAWTHORNE, Respondent, v. CITY OF NEW YORK et al., Defendants, NEW YORK CITY HOUSING AUTHORITY, Respondent, and BENJAMIN AVILES, Appellant.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 544

844 N.Y.S.2d 35

2007 NY Slip Op 08000

GWENDOLYN HAWTHORNE, Respondent, v. CITY OF NEW YORK et al., Defendants, NEW YORK CITY HOUSING AUTHORITY, Respondent, and BENJAMIN AVILES, Appellant.

1819.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided October 25, 2007.

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.