Opinion
220 18–02064
05-03-2019
Jill TOHER, Plaintiff–Respondent, v. Andrew J. DUCHNYCZ, Jr., Defendant–Appellant.
COSTELLO, COONEY & FEAFRON, PLLC, CAMILLUS (ERIN K. SKUCE OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT OBERMAN, HERKIMER, FOR PLAINTIFF–RESPONDENT.
COSTELLO, COONEY & FEAFRON, PLLC, CAMILLUS (ERIN K. SKUCE OF COUNSEL), FOR DEFENDANT–APPELLANT.
SCOTT OBERMAN, HERKIMER, FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained when she was bitten by a dog owned by tenants living in a house owned by defendant. Defendant appeals from an order denying his motion for summary judgment dismissing the complaint. We reverse.
It is well established that " ‘[t]o 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’ " ( Kraycer v. Fowler St., LLC, 147 A.D.3d 1038, 1039, 48 N.Y.S.3d 206 [2d Dept. 2017] ). Here, it is undisputed that defendant was aware that a dog was kept on the premises by his tenants and that he could have required them to remove or confine the dog. Nevertheless, defendant met his initial burden on the motion by establishing as a matter of law that he lacked actual or constructive knowledge that his tenants' dog had any vicious propensities (see Faraci v. Urban, 101 A.D.3d 1753, 1754, 957 N.Y.S.2d 792 [4th Dept. 2012] ; LePore v. DiCarlo, 272 A.D.2d 878, 879, 707 N.Y.S.2d 736 [4th Dept. 2000], lv. denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 [2000] ; Gill v. Welch, 136 A.D.2d 940, 940, 524 N.Y.S.2d 692 [4th Dept. 1988] ), and plaintiff failed to raise a triable issue of fact (see Faraci, 101 A.D.3d at 1754–1755, 957 N.Y.S.2d 792 ; cf. Arrington v. Cohen, 150 A.D.3d 1695, 1696, 53 N.Y.S.3d 450 [4th Dept. 2017] ).
Furthermore, to the extent that plaintiff's complaint includes a negligence cause of action, we conclude that the court erred in failing to dismiss that cause of action inasmuch as "[c]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner's knowledge of the animal's vicious propensities, not on theories of common-law negligence" ( Russell v. Hunt, 158 A.D.3d 1184, 1185, 70 N.Y.S.3d 279 [4th Dept. 2018] [internal quotation marks omitted] ).