Opinion
2013-04-25
Dennis ORTIZ, etc., et al., Plaintiffs–Appellants, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Brian J. Isaac, New York, for appellants. Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for respondent.
Brian J. Isaac, New York, for appellants. Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for respondent.
ANDRIAS, J.P., SAXE, DeGRASSE, RICHTER, GISCHE, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered November 30, 2011, which granted defendant New York City Housing Authority's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
NYCHA established prima facie entitlement to summary judgment by submitting evidence showing that it was not aware that a tenant had been harboring the pit bull that attacked infant plaintiff ( see Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13 [1984] ). Even if knowledge of the dog's presence could be imputed, the evidence shows that NYCHA neither knew nor should have known of the dog's vicious propensities ( see id.; Rivers v. New York City Hous. Auth., 264 A.D.2d 342, 694 N.Y.S.2d 57 [1st Dept. 1999] ).
The affidavit of another tenant, Edwin Ortiz, submitted by plaintiffs, failed to raise triable issues of fact sufficient to defeat summary judgment. Even if Ortiz's averment that the development knew that Rivera owned the dog is sufficient to establish notice of the dog's presence, Ortiz's averment that he was aware of the dog's reputation for being aggressive, and that he knew of two prior attacks by the dog before the subject incident sets forth only third parties' knowledge and observations, which is insufficient to impute knowledge of the dog's vicious propensities to NYCHA ( see LePore v. DiCarlo, 272 A.D.2d 878, 879, 707 N.Y.S.2d 736 [4th Dept. 2000], lv. denied95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 [2000];Wilson v. Bruce, 198 A.D.2d 664, 603 N.Y.S.2d 919 [3d Dept. 1993], lv. denied83 N.Y.2d 752, 611 N.Y.S.2d 134, 633 N.E.2d 489 [1994];Plue v. Lent, 146 A.D.2d 968, 537 N.Y.S.2d 90 [3d Dept. 1989] ). Also, vicious propensities may not be inferred solely from the fact that the dog was of the pit bull breed ( see Joe v. Orbit Indus., 269 A.D.2d 121, 122, 703 N.Y.S.2d 14 [1st Dept. 2000];Carter v. Metro N. Assoc., 255 A.D.2d 251, 680 N.Y.S.2d 239 [1st Dept. 1998];compare Plue, 146 A.D.2d 968, 537 N.Y.S.2d 90).