Opinion
Index No. 2021-1649 NYSCEF DOC. No. 91
11-28-2023
DUANE STANTON, Plaintiff, v. CHRIS REINHART AND AUSTIN REINHART, Defendants.
Timothy Welch, Esq. Hurwitz Fine P .C. Craig Nichols, Esq. Nichols Law Offices, PLLC. Carmen Nicolaou, Esq. Craig Nichols, Esq. The Chartwell Law Offices, LLP
Unpublished Opinion
Timothy Welch, Esq. Hurwitz Fine P .C.
Craig Nichols, Esq. Nichols Law Offices, PLLC.
Carmen Nicolaou, Esq. Craig Nichols, Esq. The Chartwell Law Offices, LLP
DECISION & ORDER
HON. ALLISON J. NELSON, A.J.S.C.
BACKGROUND
Defendant Austin Reinhart, by and through his attorney, Carmen Nicolaou, Esq., of counsel to the Chartwell Law Offices, LLP. seeks summary judgement and dismissal of the verified complaint in its entirety by way of motion filed on September 25, 2023. On November 9, 2023, Plaintiff Duane Stanton, by and through his attorney. Craig Nichols, of counsel to the Nicolas Law Offices, PLLC, filed his response in opposition to the motion. Ms. Nicolaou filed a reply affirmation on November 15, 2023.
DISCUSSION
As the Court did not direct the annexation of the Statement of Material Facts as set forth in 22 NYCRR 202.8-g(a), the Court does not find the section applicable, and thus will render its decision based upon the merits.
Summan judgment may be granted only where there are no triable issues of fact, and the moving party is entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 11986]; Zuckerman v. City of New York, 49 N.Y.2d 557 11980]. The motion needs to be supported by sufficient evidence in admissible form to show the material and undisputed facts based on which judgment as a matter of law must be granted. Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [1985]; Viviane Etienne Medical Care v. Country-Wide Insurance Company, 25 N.Y.3d 498 [2015], This is an affirmative obligation for the moving party and the motion burden requires more than the argument that the opposing party lacks evidence to support the contested point. Voss v. Netherlands Insurance Co., 22 N.Y.3d 728 [2014]; Yun Tung Chow v. Reckitt &Colman, Inc., 17 N.Y.3d 29 [2011 ]; Smalls v. A.JI industries, Inc., 10 N.Y.3d 733 [2008]. In the absence of such an affirmative showing by the moving party, the motion must be denied regardless of the sufficiency of the responding papers. Vega v. Restani Construction Corp.. 18 N.Y.3d499 [2012].
Assuming that the burden on the motion has passed to the responding party, it is incumbent on that party to demonstrate by admissible evidence the questions of fact which may preclude summary judgment. Alvarez, 68 N.Y.2d at 324; Zuckerman, 49 N.Y.2d at 562. A responding burden is not met by conclusory or unsubstantiated allegations or the expression of hope. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 [2000]; Zuckerman, 49 N.Y.2d at 562.
The Court is charged to view evidence and inferences arising therefrom in a light most favorable to the responding party. Haymon v. Pettit. 9 N.Y.3d 324 [2007]; Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgt., LP, 7 N.Y.3d 96 [2006]. The motion should be granted unless a material triable issue of fact has been identified. Panepinto v. New York Life Insurance Co., 90 N.Y.2d 717 [1997]; Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]. The function of the Court on the motion is the determination of whether a triable issue of fact exists and not one determining material fact or credibility issues. Vega, 18 N.Y.3d at 505; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957].
Generally, a landlord is only liable for attacks by animals owned by a tenant if he had prior knowledge of the animal and its dangerous proclivities at the time of leasing the premises. Strunk v. Zoltanski, 9 N.Y.2d 572 [1984], However, if a landlord becomes aware that the tenant is harboring an animal with vicious propensities during the term of a lease, the landlord may be liable for an attack if he had "control of the premises or other capability to remove or confine the animal." Cronin v. Chrosniak, 145 A.D.2d 905, 906 [4lh Dept. 1988], internal citations omitted.
Moving Defendant has made an affirmative showing that he had no knowledge of the violent propensities of his tenant's dogs prior to August 24, 2021. Plaintiff has failed to demonstrate a question of fact with regards to his knowledge beyond conclusory or unsubstantiated allegations. Thus, the Court is granting the motion for summary judgement with regards to the attack that occurred on August 11, 2021.
However, it is uncontroverted that on August 24, 2021, Plaintiffs wife notified Moving Defendant about the attack that occurred on August I 1.2021. The Court finds there is question of fact whether the Moving Defendant 1) had "control of the premises or other capability to remove or confine the animal" (id.) between his learning of the dogs violent propensities and the second attack on September 9, 2021 and 2) whether he had notice of the problem for "such a period of time that, in the exercise of reasonable care, it should have been corrected" (Rodgers v. Horizons at Monticello, LLP, 13OA.D.3d 1285 [3rd Dept. 2015]). Therefore, the Court is denying the motion for summary judgement with regards to the attack that occurred on September 9. 2021.
Accordingly, it is
ORDERED, ADJUDGED and DECREED that the motion for summary judgement is granted as to the August 11,2021 attack and denied as to the September 9, 2021; and it is further
ORDERED, that the allegations in the Complaint related to the August 11. 2021 attack are hereby dismissed; and it is further
ORDERED, that a copy of this Order with notice of entry shall be served on Plaintiff and Defendant Chris Reinhart, with proof of service to be filed to the electronic case file not later than December 15, 2023.
IT IS SO ORDERED.