Opinion
2003-04227.
Decided May 24, 2004.
In an action to recover damages for personal injuries, the defendant Shareen Realty Corp. appeals from an order of the Supreme Court, Queens County (Flug, J.), dated March 11, 2003, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Torino Bernstein, P.C., Mineola, N.Y. (Michael A. Amodio and Eva Tompkins of counsel), for appellant.
Mallilo Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the contentions of the defendant Shareen Realty Corp. (hereinafter Shareen), it did not establish a prima facie case for summary judgment dismissing the complaint. Shareen failed to submit sufficient evidence in admissible form demonstrating the absence of any triable issues of fact concerning the nature and location of the alleged sidewalk defect ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851; Zuckerman v. City of New York, 49 N.Y.2d 557). Moreover, to meet its prima facie burden, Shareen could not rely on the evidence submitted for the first time in its reply papers ( see Adler v. Suffolk County Water Auth., 306 A.D.2d 229; Constantine v. Premier Cab Corp., 295 A.D.2d 303; Feratovic v. Lun Wah, Inc., 284 A.D.2d 368; Voytek Technology v. Rapid Access Consulting, 279 A.D.2d 470). In any event, granting Shareen's motion for summary judgment dismissing the complaint would have been premature since discovery was outstanding at the time the motion was made ( see CPLR 3212[f]; Lantigua v. Mallick, 263 A.D.2d 467; Brown v. County of Nassau, 226 A.D.2d 492; Yu v. Forero, 184 A.D.2d 506).
FLORIO, J.P., KRAUSMAN, COZIER and RIVERA, JJ., concur.