Opinion
April 26, 1999
Appeal from the Supreme Court, Kings County (Rappaport, J.).
Ordered that the order is affirmed, with costs.
The infant plaintiff was bitten by a pit bull on premises owned by the defendant. In order to prevail in their action against the defendant, the plaintiffs must establish that the defendant knew of the dog's presence on the premises and its vicious propensities, and that the defendant had control of the premises or otherwise had the ability to remove or confine the dog ( see, Strunk v. Zoltanski, 62 N.Y.2d 572, 575; Powell v. Wohlleben, 256 A.D.2d 397).
The defendant's motion for summary judgment was properly denied as it failed to present admissible evidence showing that the plaintiffs' action has no merit ( see, CPLR 3212 [b]; GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967; Zuckerman v. City of New York, 49 N.Y.2d 557, 562; see also, Cronin v. Chrosniak, 145 A.D.2d 905).
In view of the defendant's failure to meet its initial burden of proof, the motion was properly denied regardless of the sufficiency of the plaintiffs' opposing papers ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851).
Ritter, J. P., Altman, Goldstein and McGinity, JJ., concur.