Opinion
October 27, 1994
Appeal from the Supreme Court, Washington County (Dier, J.).
Plaintiff's complaint in this personal injury action alleges that, on February 16, 1993, Nichole L. Terrio, while on premises known as 40 Lower Wright Road in the Town of Fort Edward, Washington County, was bitten by a dog owned by defendant James Daggett and harbored at 5 James Street in the Village of Hudson Falls, Washington County, which premises are owned by defendants George Ferris and Virginia Ferris (hereinafter collectively referred to as defendants). Following service of their answer, defendants moved for summary judgment dismissing the complaint as to them. Supreme Court denied the motion. Defendants appeal.
We reverse. Initially, in view of the complaint's allegation that the incident did not occur on defendants' property, we note that they did not owe a duty of care to Terrio (see, Strunk v Zoltanski, 62 N.Y.2d 572, 574; Scurti v. City of New York, 40 N.Y.2d 433, 437). We further note that this factor negates plaintiff's argument that defendants' motion is premature since no amount of discovery can obviate the fact that the incident did not occur on their property. In any event, plaintiff did not sufficiently controvert defendants' proof showing that they did not have actual or constructive knowledge of the dog's "vicious tendencies" (see, Wilson v. Bruce, 198 A.D.2d 664, lv. denied 83 N.Y.2d 752; Smrtic v. Marshall, 176 A.D.2d 986).
Cardona, P.J., Mikoll, Mercure and Yesawich Jr., JJ., concur. Ordered that the order is reversed, on the law, with costs, motion granted, summary judgment awarded to defendants George Ferris and Virginia Ferris, and complaint dismissed against them.