State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 520238 

________________________________

DARIUS RODGERS, an Infant, by

JENNIFER McCOY, His Mother

and Guardian, et al.,

Respondents,

v MEMORANDUM AND ORDER

HORIZONS AT MONTICELLO, LLP,

Appellant.

(And a Third-Party Action.)

________________________________

Calendar Date: May 27, 2015

Before: Peters, P.J., Lahtinen, Garry and Devine, JJ.

__________

Ahmuty, Demers & McManus, Hopewell Junction (Lisa L.

Gokhulsingh of Gannon, Rosenfarb & Drossman, New York City, of

counsel), for appellant.

The Finkelstein Law Firm, Goshen (Steven A. Kimmel,

Washingtonville, of counsel), for respondents.

__________

Devine, J.

Appeal from an order of the Supreme Court (Meddaugh, J.),

entered September 22, 2014 in Sullivan County, which, among other

things, denied defendant's motion for summary judgment dismissing

the complaint.

On October 31, 2012, plaintiff Darius Rodgers (hereinafter

plaintiff) was attending a Halloween party at an apartment

complex owned by defendant. Lisa Martin and Leon Martin were the

parents of one of plaintiff's friends, and the Martins lived at
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the complex with their pit bull. Plaintiff was attacked and

bitten by the dog when he stopped by the Martins' apartment. 

Plaintiff and his mother, plaintiff Jennifer McCoy, commenced

this negligence action to recover damages stemming from the

attack. Defendant, in turn, commenced a third-party action

against the Martins for contribution. Following service of its

answer and discovery, defendant moved for summary judgment

dismissing the complaint. Supreme Court, among other things,

found that questions of fact precluded a grant of summary

judgment to defendant. Defendant now appeals.

We affirm. "A landlord may be liable for the attack by a

dog kept by a tenant if the landlord has actual or constructive

knowledge of the animal's vicious propensities and maintains

sufficient control over the premises to require the animal to be

removed or confined" (Smedley v Ellinwood, 21 AD3d 676, 676

[2005] [citation omitted]; accord Craft v Whittmarsh, 83 AD3d

1271, 1271 [2011]; see Strunk v Zoltanski, 62 NY2d 572, 575

[1984]). Defendant was empowered to require the Martins to

remove the animal and, indeed, its site manager testified that he

took steps to do so once he learned of the dog's existence in

September 2012. The site manager also testified that he was

unaware of any complaints regarding the dog, and that he only

endeavored to have it removed because tenants were not allowed to

own large dogs such as pit bulls. McCoy herself gave deposition

testimony in which she acknowledged that she did not know of any

prior incidents where the dog had attempted to bite someone. The

foregoing proof was "sufficient to satisfy defendant's threshold

burden of demonstrating that [it] had no actual or constructive

knowledge of the dog's vicious propensities, thereby shifting the

burden to plaintiff[s] to come forward with evidence in

admissible form demonstrating a triable issue of fact" (Craft v

Whittmarsh, 83 AD3d at 1272; see Alvarez v Prospect Hosp., 68

NY2d 320, 324 [1986]).

Plaintiffs responded with evidence that included affidavits

by plaintiff and two residents of the complex who were familiar

with the behavior of the pit bull. Plaintiff averred that he had

previously watched the Martins' eldest son walk the dog, who

permitted the dog to chase children and growl, bark and jump

against its leash at them. One of the neighbors observed similar
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behavior when Lisa Martin was walking the dog, and pointed out

that Martin kept the dog muzzled during walks. Indeed, the same

neighbor was attacked by the dog in the summer of 2012, and only

escaped injuries because the dog was muzzled. Both neighbors

also stated that the Martins would often tie the dog up near the

entrance to their apartment, where it would growl, bark and lunge

at individuals who walked by. The neighbors further contradicted

the claim of the site manager that he had no awareness of the

animal's vicious propensities, stating that they had repeatedly

complained to him about the problem.1 Given this proof, we agree

with Supreme Court that plaintiffs raised "triable issues of fact

regarding [the dog's] vicious propensities and defendant['s]

notice of same" (Coole-Mayhew v Timm, 18 AD3d 948, 949-950

[2005]; see Seybolt v Wheeler, 42 AD3d 643, 645 [2007]).

Defendant further asserts that, if it had actual or

constructive notice of the dog's vicious propensities, it did not

have a reasonable time in which to correct the problem before the

attack at issue. Plaintiffs submitted evidence suggesting that

defendant became aware of the dog over a year before the attack

occurred but, even assuming without deciding that such evidence

could not be considered, the site manager admitted that he was

aware of the dog two months before the attack. That awareness

prompted the site manager to notify the Martins that they must

rid themselves of the dog, as well as to refer the matter to

counsel so that eviction proceedings could be commenced. He

acknowledged that counsel worked "very slowly" on eviction

matters, however, and that counsel's lethargic approach

ultimately required defendant to retain new counsel. The site

manager also easily could have, but did not, contact the Martins

and encourage them to take "reasonable precautions for the

protection of third persons, . . . with respect to confinement or

control of the dog" (Strunk v Zoltanski, 62 NY2d at 577). Thus,

1 Defendant points out that McCoy had spoken to the two

neighbors and, during her deposition testimony, stated that

neither had told her about their prior complaints. It suffices

to say that there is nothing inherently unbelievable in the

proposition that the neighbors had previously complained about

the dog but failed to tell McCoy that they had done so. 
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assuming that defendant had actual or constructive notice of the

dog's vicious propensities, questions of fact exist as to whether

it had notice of the problem "for such a period of time that, in

the exercise of reasonable care, it should have been corrected"

(Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996]).

Peters, P.J., Lahtinen and Garry, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court