Opinion
May 10, 1999
Appeal from Order of Supreme Court, Erie County, Whelan, J. — Summary Judgment.
PRESENT: DENMAN, P. J., GREEN, HAYES, PIGOTT, JR., AND BALIO, JJ.
Order unanimously reversed on the law with costs, motion granted and complaint against defendants Brian K. Jackson and Tamara M. Jackson dismissed. Memorandum: This action arises out of an incident in which plaintiff was attacked and bitten by a dog owned by her neighbor, defendant Darryl White, sued as Darrell White. Plaintiff alleges that defendants Brian K. Jackson and Tamara M. Jackson, White's landlords, were negligent in allowing White to harbor a dog that the Jacksons knew or should have known was vicious, and in failing to evict White or take other steps to make sure that the dog was removed or confined. The Jacksons appeal from an order denying their motion for summary judgment dismissing the complaint.
Supreme Court erred in denying the Jacksons' motion. In support of their motion, the Jacksons established that they had no knowledge of the dog's vicious propensities ( see, Briggs v. Taggert, ___ A.D.2d ___ [decided Nov. 13, 1998]; Mehl v. Fleisher, 234 A.D.2d 274, 275; Plue v. Lent, 146 A.D.2d 968, 968-969). In opposition, plaintiff failed to demonstrate a triable question of fact on that issue ( see, Altmann v. Emigrant Sav. Bank , 249 A.D.2d [decided Apr. 9, 1998]; Wilson v. Bruce, 198 A.D.2d 664, lv denied 83 N.Y.2d 752; Plue v. Lent, supra, at 968-969). Evidence that the Jacksons knew of the existence of the dog does not support the inference that they knew of its vicious propensities ( see, Carter v. Metro N. Assocs., ___ A.D.2d ___ [decided Nov. 24, 1998]). Moreover, the Jacksons did not have "control of the premises or other capability to remove or confine the animal" ( Strunk v. Zoltanski, 62 N.Y.2d 572, 575; cf., Wilson v. Bruce, supra, at 664-665; Cronin v. Chrosniak, 145 A.D.2d 905, 906-907).