Opinion
2021–02743 Index No. 520960/18
06-28-2023
Dwight KENNEDY, appellant, v. BROOKLYN HOSPITALITY, LLC, respondent, et al., defendants.
Friedman & Simon, LLP, Jericho, NY (John G. Papadopoulos of counsel), for appellant. McCarthy & Associates, Melville, NY (Patrick J. Morale of counsel), for respondent.
Friedman & Simon, LLP, Jericho, NY (John G. Papadopoulos of counsel), for appellant.
McCarthy & Associates, Melville, NY (Patrick J. Morale of counsel), for respondent.
BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated March 30, 2021. The order granted the motion of the defendant Brooklyn Hospitality LLC for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On April 1, 2017, the plaintiff was bitten by a nonparty guest's dog in the lobby of a pet-friendly hotel. On or about October 17, 2018, the plaintiff commenced this action against, inter alia, the defendant hotel, Brooklyn Hospitality, LLC (hereinafter the defendant). The defendant moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court granted the motion. The plaintiff 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 in strict liability in tort for damages caused by a dog bite or attack against a property owner, the plaintiff must demonstrate that the owner: "(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 [property owner] to remove or confine the dog" ( Sarno v. Kelly, 78 A.D.3d 1157, 1157, 912 N.Y.S.2d 130 ; see Elardi v. Morales, 192 A.D.3d 1074, 1074–1075, 141 N.Y.S.3d 716 ; J.R. v. Poonam Apts., LLC, 186 A.D.3d 1421, 1422, 128 N.Y.S.3d 863 ).
Here, the defendant established, prima facie, that it was not aware, nor should it have been aware, that the subject dog had any vicious propensities (see Elardi v. Morales, 192 A.D.3d at 1075, 141 N.Y.S.3d 716 ; Kraycer v. Fowler St., LLC, 147 A.D.3d 1038, 1039, 48 N.Y.S.3d 206 ). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's remaining contentions are either without merit or not properly before this Court.
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
BARROS, J.P., BRATHWAITE NELSON, DOWLING and WARHIT, JJ., concur.