Opinion
2013-04-4
Yimi DESAY, an Infant, by her Mother and Legal Guardian, Sara YARD, et al., Plaintiffs–Appellants, v. COPO MANAGEMENT, LLC, et al., Defendants–Respondents, Francisco Colon, Defendant.
Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for appellants. Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for COPO Management, LLC, respondent.
Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for appellants. Fabiani Cohen & Hall, LLP, New York (Kevin B. Pollak of counsel), for COPO Management, LLC, respondent.
Michael A. Cardozo, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for municipal respondents.
TOM, J.P., ANDRIAS, SAXE, ABDUS–SALAAM, GISCHE, JJ.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered January 25, 2012, which granted the motions of defendants COPO Management LLC (COPO), The City of New York and The New York City Department of Education (collectively City) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff Yimi Desay was allegedly bitten by a pitbull that entered a public park, owned and operated by the City, through a hole in the fence between the park and the adjacent premises, which is owned by COPO. The dog belonged to a tenant in COPO's premises.
COPO established its entitlement to judgment as a matter of law by presenting the testimony of its sole member who stated that he had no knowledge of the dog's existence, let alone its vicious propensities, until after it bit Desay ( see Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13 [1984];Smedley v. Ellinwood, 21 A.D.3d 676, 799 N.Y.S.2d 682 [3d Dept. 2005] ). Even if COPO could be deemed to have constructive knowledge of the dog's existence by virtue of its regular inspections of the premises, such knowledge is insufficient to impute knowledge of vicious propensities ( see Balla v. Jones, 305 A.D.2d 1103, 759 N.Y.S.2d 726 [4th Dept. 2003] ). Moreover,it is undisputed that the bite did not occur on COPO's premises ( see Walker v. Gold, 70 A.D.3d 1349, 894 N.Y.S.2d 809 [4th Dept. 2010], lv. denied14 N.Y.3d 712, 903 N.Y.S.2d 771, 929 N.E.2d 1006 [2010] ).
Plaintiffs argument that COPO was vicariously liable based upon the theory that the dog's owner, COPO's tenant, was COPO's agent, is unavailing, since it was advanced for the first time in opposition to COPO's motion ( see Ostrov v. Rozbruch, 91 A.D.3d 147, 154, 936 N.Y.S.2d 31 [1st Dept. 2012] ), and is based upon a mischaracterization of the testimony.
Dismissal of the complaint as against the City was also proper. Even assuming that the City knew or should have known that a vicious dog was present at the adjacent premises, it was not foreseeable that because a hole in the fence existed, a vicious animal would enter the playground through the hole and attack a person on the premises ( see Di Ponzio v. Riordan, 89 N.Y.2d 578, 585, 657 N.Y.S.2d 377, 679 N.E.2d 616 [1997];Lee v. New York City Hous. Auth., 25 A.D.3d 214, 217, 803 N.Y.S.2d 538 [1st Dept. 2005], lv. denied6 N.Y.3d 708, 812 N.Y.S.2d 443, 845 N.E.2d 1274 [2006] ). Here, the dog owner's failure to adequately restrain the dog proximately caused Desay's injuries, and was a superceding or intervening occurrence that broke any causal nexus between the hole in the fence and Desay's injuries ( see e.g. Campbell v. Central N.Y. Regional Transp. Auth., 7 N.Y.3d 819, 820–821, 822 N.Y.S.2d 751, 855 N.E.2d 1165 [2006];Maheshwari v. City of New York, 2 N.Y.3d 288, 295, 778 N.Y.S.2d 442, 810 N.E.2d 894 [2004] ).