Przybylski v. Ommeren

In an action to recover damages for personal injuries, etc., the defendant Robert Van Ommeren appeals from an order of the Supreme Court, Nassau County (McCabe, J.), dated April 15, 1996, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him. Ordered that the order is affirmed, with costs. The plaintiff Helena Przybylski was attacked and bitten by a pit bull dog. Both she and her husband commenced the instant action against several defendants, including the appellant, to recover damages for personal injuries she sustained in the attack. The appellant moved for summary judgment dismissing the complaint on the ground that he "did not own, keep, harbor or control the dog in question”. The plaintiffs opposed, and the Supreme Court properly denied, the appellant’s motion on the ground that the essential facts were within his "knowledge and control” and discovery had not yet taken place (see, Baron v Incorporated Vil. of Freeport, 143 AD2d 792; Yu v Forero, 184 AD2d 506). Discovery is to proceed forthwith in order to expedite resolution of the material issues of fact at bar. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.