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Finney v. Fraioli

Appellate Division of the Supreme Court of New York, Second Department
Mar 5, 2001
281 A.D.2d 389 (N.Y. App. Div. 2001)

Opinion

Submitted February 7, 2001.

March 5, 2001.

In an action to recover damages for personal injuries, etc., the defendant Carlo Fraioli appeals from an order of the Supreme Court, Putnam County (Hickman, J.), dated May 16, 2000, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Marc D. Orloff, P.C., Goshen, N.Y. (Anthony J. Perna, Jr., of counsel), for appellant.

Joseph J. Spofford, Jr., Carmel, N.Y., for respondents.

Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, ANITA R. FLORIO, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

A plaintiff seeking to recover against a landlord under a theory of strict liability for a dog bite must prove that the landlord had notice that the dog was being harbored on the premises and that the landlord knew or should have known that the dog had vicious propensities (see, Bemiss v. Acken, 273 A.D.2d 332; Lebron v. New York City Hous. Auth., 268 A.D.2d 563).

The Supreme Court erred in denying the appellant's motion for summary judgment dismissing the complaint insofar as asserted against him. The appellant's moving papers established a prima facie case of entitlement to judgment as a matter of law, and the plaintiffs failed to raise a triable issue of fact (see, Bemiss v. Acken, supra; Lebron v. New York City Hous. Auth., supra; Altmann v. Emigrant Sav. Bank, 249 A.D.2d 67; Arcara v. Whytas, 219 A.D.2d 871).


Summaries of

Finney v. Fraioli

Appellate Division of the Supreme Court of New York, Second Department
Mar 5, 2001
281 A.D.2d 389 (N.Y. App. Div. 2001)
Case details for

Finney v. Fraioli

Case Details

Full title:ALLAN FINNEY, ET AL., RESPONDENTS, v. CARLO FRAIOLI, APPELLANT, ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 5, 2001

Citations

281 A.D.2d 389 (N.Y. App. Div. 2001)
721 N.Y.S.2d 274

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