The following papers, numbered 1 to 8 were read on this motion and cross-motion for summary judgment.PAPERS NUMBEREDNotice of Motion/Order to Show Cause — Affidavits — Exhibits 1-3; 4-6Answering Affidavits — Exhibits 4-6Replying Affidavits 7; 8Cross-Motion: X Yes No
*1 Upon a reading of the foregoing cited papers, it is Ordered that Defendant’s motion and Plaintiffs’ cross-motion for summary judgment pursuant to CPLR §3212, are denied. On August 23, 2014 at around 9:00 am Defendant’s dog “Diesel,” a four-year old American Bulldog, bit Plaintiff Ruth Reif on Ocean Beach, Wainscott, East Hampton, New York, causing serious injuries. Two alternative versions of how the incident began has been given. Plaintiffs allege that Diesel unprovoked attacked Ruth Reif’s brother’s (Samuel Yanovich) dog “Rocky,” and held Rocky’s head in his mouth for “at least three minutes” causing Mrs. Reif to fear Diesel had killed him (Moving Papers Ex. D). Eventually the owners were able to successfully free Rocky from Diesel’s grip. It was at this point Mrs. Reif realized she was injured and substantially bleeding because she had put her arm in Diesel’s mouth when attempting to release Rocky (Moving Papers Ex. D, Opposition Papers Ex. C: Affirmation of Samuel Yanovich). The Defendant testified that Diesel was watching Rocky play with another dog from about fifty (50) yards away and upon seeing Rocky attacking the dog, Diesel ran over to stop the fight by grabbing Rocky on the neck with his teeth (Moving Papers Ex. B). On May 27, 2016 the Plaintiffs commenced this action to recover damages for the personal injuries Mrs. Reif sustained.The Defendant now moves for summary judgment pursuant to CPLR §3212. The Plaintiffs oppose the motion and cross-move for summary judgment on liability.To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v. City of New York, 81 NY2d 833, 652 NYS2d 723 [1996]). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party (SSBS Realty Corp. v. Public Service Mut. Ins. Co., 253 AD2d 583, 677 NYS2d 136 [1st Dept. 1998]). It is axiomatic that summary judgment is a drastic remedy and
