Opinion
No. 2022-02693 Index No. 515897/18
12-24-2024
Yefim Gershik, appellant, v. New York City Housing Authority, respondent.
William Pager, Brooklyn, NY, for appellant. Herzfeld & Rubin, P.C., New York, NY (Miriam Skolnik of counsel), for respondent.
William Pager, Brooklyn, NY, for appellant.
Herzfeld & Rubin, P.C., New York, NY (Miriam Skolnik of counsel), for respondent.
ROBERT J. MILLER, J.P. WILLIAM G. FORD LAURENCE L. LOVE DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated March 31, 2022. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In March 2018, the plaintiff allegedly was injured when he was bitten by a dog while delivering food in a building owned by the defendant. The defendant moved for summary judgment dismissing the complaint. In an order dated March 31, 2022, the Supreme Court granted the motion. The plaintiff appeals.
"'The sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability'" (Kennedy v Brooklyn Hospitality, LLC, 217 A.D.3d 931, 932, quoting King v Hoffman, 178 A.D.3d 906, 908). "'To recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog'" (King v Hoffman, 178 A.D.3d at 909, quoting Sarno v Kelly, 78 A.D.3d 1157, 1157; see Kennedy v Brooklyn Hospitality, LLC, 217 A.D.3d at 931).
Here, the defendant established, prima facie, that it had neither notice that the subject dog was being harbored on the premises nor knowledge of the dog's alleged violent propensities (see King v Hoffman, 178 A.D.3d at 909; Bukhtiyarova v Cohen, 172 A.D.3d 1153, 1155; see also Kennedy v Brooklyn Hospitality, LLC, 217 A.D.3d at 931; Elardi v Morales, 192 A.D.3d 1074, 1074-1075). In opposition, the plaintiff failed to raise a triable issue of fact (see Agro v Olivieri, 226 A.D.3d 734, 735; Kennedy v Brooklyn Hospitality, LLC, 217 A.D.3d at 931). Contrary to the plaintiff's contention, his deposition testimony that he had complained on a prior occasion to one of the defendant's employees about the dog was insufficient to put the defendant on notice of the dog's vicious tendencies, as the plaintiff was unable to identify the employee or produce any evidence of the plaintiff's alleged complaint. Further, the plaintiff failed to establish that the unidentified employee was responsible for the property, was a manager of the property, or was an agent for the defendant (see King v Hoffman, 178 A.D.3d at 909; Wilson v Livingston, 305 A.D.2d 585, 586).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.
MILLER, J.P., FORD, LOVE and GOLIA, JJ., concur.