Opinion
2012-04-17
Dwayne McKNIGHT, etc., et al., respondents, v. ATA HOUSING CORP., et al., appellants(and a third-party action).
Camacho Mauro & Mulholland, LLP, New York, N.Y. (Joseph O. Tuffy of counsel), for appellants. Scott J. Zlotolow, Sayville, N.Y. (Anthony Bilello of counsel), for respondents.
Camacho Mauro & Mulholland, LLP, New York, N.Y. (Joseph O. Tuffy of counsel), for appellants. Scott J. Zlotolow, Sayville, N.Y. (Anthony Bilello of counsel), for respondents.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.
In action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated July 8, 2011, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On June 16, 2007, the infant plaintiff was staying at the apartment of the third-party defendant, his aunt, when he allegedly was bitten by her pit bull terrier. The defendants owned and managed the apartment building in which the third-party defendant rented her apartment.
“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” ( Sarno v. Kelly, 78 A.D.3d 1157, 1157, 912 N.Y.S.2d 130; see Baisi v. Gonzalez, 97 N.Y.2d 694, 695, 739 N.Y.S.2d 92, 765 N.E.2d 295; Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13; Jones v. Pennsylvania Meat Mkt., 78 A.D.3d 658, 659, 910 N.Y.S.2d 168; Bennett v. White, 37 A.D.3d 630, 630, 830 N.Y.S.2d 352; Ali v. Weigand, 37 A.D.3d 628, 628–629, 830 N.Y.S.2d 354; Madaia v. Petro, 291 A.D.2d 482, 483, 738 N.Y.S.2d 676; Bemiss v. Acken, 273 A.D.2d 332, 333, 709 N.Y.S.2d 592).
In opposition to the defendants' demonstration of their entitlement to judgment as a matter of law ( see Beljean v. Maiuzzo, 256 A.D.2d 533, 533, 683 N.Y.S.2d 104), the plaintiffs submitted evidence sufficient to raise a triable issue of fact ( see Bennett v. White, 37 A.D.3d at 631, 830 N.Y.S.2d 352; Han v. F & M Enter. of Corona Corp., 293 A.D.2d 572, 573, 740 N.Y.S.2d 227; Beljean v. Maiuzzo, 256 A.D.2d at 534, 683 N.Y.S.2d 104). The affidavits from the neighbors of the third-party defendant submitted by the plaintiffs in opposition to the motion were sufficient to raise a triable issue of fact as to whether the defendants had notice that the third-party defendant was harboring a dog in her apartment and whether they knew or should have known that the dog had vicious propensities ( see Bennett v. White, 37 A.D.3d at 631, 830 N.Y.S.2d 352). Further, the deposition testimony of the defendants' assistant superintendent also raised a triable issue of fact as to whether the defendants had notice that the third-party defendant was harboring a dog in her apartment.
The defendants' remaining contention is without merit ( see Quiroa v. Ferenczi, 77 A.D.3d 901, 901–902, 909 N.Y.S.2d 762; Stern v. Waldbaum, Inc., 234 A.D.2d 534, 535, 651 N.Y.S.2d 187).