Opinion
SSM1802
Decided January 15, 2002.
Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered August 6, 2001, which, with two Justices dissenting, affirmed an order of the Supreme Court (Nicholas Colabella, J.), entered in Westchester County, granting defendant landlord's motion for summary judgment dismissing the complaint insofar as asserted against him.
The infant plaintiff was bitten by a dog harbored by defendant tenants, in violation of their lease, on premises owned by defendant landlord. Plaintiffs commenced this action against the tenants and landlord under a theory of strict liability for a dog bite. Supreme Court granted the landlord's motion to dismiss the complaint as against him. The Appellate Division affirmed, with two Justices dissenting.
Submitted by Lewis P. Trippett, for appellants.
Submitted by Stephen J. Penino, for respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, and defendant-landlord's motion for summary judgment dismissing the complaint insofar as asserted against him denied.
There are issues of fact both as to the landlord's knowledge of the presence of a dog with vicious propensities on the property and as to the landlord's control of the premises so as to allow him to remove or confine the animal. Summary judgment therefore should not have been granted (see, Strunk v. Zoltanski, 62 N.Y.2d 572, 575).
On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, and defendant Gonda's motion for summary judgment dismissing the complaint insofar as asserted against him denied, in a memorandum.