Opinion
2018–10713 Index No. 500/13
03-31-2021
James ELARDI, respondent, v. Sergio MORALES, defendant, Carl Weber, Jr., appellant.
Scott Lockwood, Deer Park, NY, for appellant. David Horowitz, P.C., New York, N.Y. (Christopher S. Joslin of counsel), for respondent.
Scott Lockwood, Deer Park, NY, for appellant.
David Horowitz, P.C., New York, N.Y. (Christopher S. Joslin of counsel), for respondent.
SYLVIA O. HINDS–RADIX, J.P., HECTOR D. LASALLE, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Carl Weber, Jr., appeals from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), entered August 8, 2018. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Carl Weber, Jr., for summary judgment dismissing the complaint insofar as asserted against him is granted.
On July 9, 2012, the plaintiff allegedly sustained injuries when he was bitten by two dogs that escaped from within a fenced yard of premises located in Wyandanch. The plaintiff commenced this action against the owner of the dogs, the defendant Sergio Morales, and the owner of the property, the defendant Carl Weber, Jr. Thereafter, Weber moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court denied the motion, and Weber appeals.
"The sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability" ( King v. Hoffman, 178 A.D.3d 906, 908, 114 N.Y.S.3d 467 ). "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 J.R. v. Poonam Apartments, LLC, 186 A.D.3d 1421, 1422, 128 N.Y.S.3d 863 ; Kraycer v. Fowler St., LLC, 147 A.D.3d 1038, 1039, 48 N.Y.S.3d 206 ).
Here, Weber established, prima facie, that he was not aware, nor should he have been aware, that the dogs had any vicious propensities (see Kraycer v. Fowler St., LLC, 147 A.D.3d at 1039, 48 N.Y.S.3d 206 ). In opposition to that showing, the plaintiff failed to raise a triable issue of fact (see King v. Hoffman, 178 A.D.3d at 909, 114 N.Y.S.3d 467 ).
Accordingly, the Supreme Court should have granted Weber's motion for summary judgment dismissing the complaint insofar as asserted against him.
HINDS–RADIX, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.