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Ruggio v. PCCB

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


February 6, 2009

KATHLEEN RUGGIO AND ROBERT RUGGIO, SR., PLAINTIFFS-RESPONDENTS,
v.
PCCB, INC., DOING BUSINESS AS PORT CITY CAFÉ & BAKERY, DEFENDANT, LAURIE O'BRIEN AND WILLIAM O'BRIEN, INDIVIDUALLY, DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Oswego County (James W. McCarthy, A.J.), entered November 20, 2007 in a personal injury action. The order denied the motion of defendants Laurie O'Brien and William O'Brien for summary judgment.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., CENTRA, FAHEY, GREEN, AND PINE, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by plaintiff Kathleen Ruggio when she bit into a foreign object in a sandwich purchased from a restaurant owned by defendant PCCB, Inc., doing business as Port City Café & Bakery (PCCB). Laurie O'Brien and William O'Brien (collectively, defendants) are shareholders of PCCB. Before discovery, defendants moved for summary judgment dismissing the amended complaint against them. Supreme Court properly denied the motion without prejudice. We agree with plaintiffs that discovery may uncover "facts essential to justify opposition" to the motion (CPLR 3212 [f]; see Wright v Shapiro, 16 AD3d 1042, 1043).

20090206

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