Opinion
June 9, 1995
Appeal from the Supreme Court, Niagara County, Mintz, J.
Present — Denman, P.J., Green, Fallon, Doerr and Balio, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied the motion of defendant James L. Gooch for summary judgment. Although an out-of-possession landowner who relinquishes control of the premises is not liable for personal injuries caused by any unsafe condition existing on the premises once the possession and control of the property have been transferred (see, June v. Zikakis Chevrolet, 199 A.D.2d 907; Stewart v. Yeshiva Nachlas Haleviym, 186 A.D.2d 731), there is a question of fact regarding Gooch's control of the property and the dog that lunged at plaintiff. Gooch testified that he bought the chain involved in the incident because the dog had broken other chains, that he moved the chain so that the dog would not obstruct the entry of the mailman and the paperboy to the front yard, and that he was aware of at least one other attack by the dog. By submitting that testimony in opposition to Gooch's motion, plaintiff and defendant Kim Ryc met their burden of submitting evidentiary facts rebutting Gooch's prima facie showing and demonstrating the existence of triable issues of fact (see, Plue v. Lent, 146 A.D.2d 968, 968-969). Plaintiff and Ryc raised questions of fact whether Gooch had knowledge of the vicious propensities of the dog and whether Gooch had control of the premises or the capability to remove or confine the animal (see, Strunk v. Zoltanski, 62 N.Y.2d 572, 575; Dixon v. Frazini, 188 A.D.2d 1054; Cronin v. Chrosniak, 145 A.D.2d 905).