General
David Huttner, Appellant, v. Queens College et al., Defendants, and City of New York, Respondent
287 A.D.2d 543731 N.Y.S.2d 659·New York Supreme Court, Appellate Division·2001·NY
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Opinion
David Huttner, Appellant, v Queens College et al., Defendants, and City of New York, Respondent.
[731 NYS2d 659]
[MAJORITY]
—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated November 6, 2000, which, inter alia, granted the motion of the defendant City of New York for leave to amend its answer and for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is modified by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the City of New York, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.
The Supreme Court providently exercised its discretion in granting that branch of the motion of the City of New York which was for leave to amend its answer to deny ownership of the land where the accident occurred (see, Fisher v Braun, 227 AD2d 586). However, because the City failed to establish a prima facie case that it did not own the land where the accident occurred, that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the City should have been denied. Santucci, J. P., Altman, Florio, H. Miller and Cozier, JJ., concur.