Briggs v. Taggert

255 A.D.2d 980, 680 N.Y.S.2d 137, 1998 N.Y. App. Div. LEXIS 12258

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint against defendant Donald Wells dismissed. Memorandum: Supreme Court erred in denying the motion of Donald Wells (defendant) for summary judgment dismissing the complaint against him. Plaintiff brought this action to recover damages for injuries sustained by his four-year-old daughter when she was attacked by a dog owned by defendant’s tenants. Defendant established his entitlement to judgment as a matter of law by submitting proof that he was not aware of the dog’s alleged vicious propensities (see, Mehl v Fleisher, 234 AD2d 274, 275). Plaintiff failed to come forward with evidentiary proof in admissible form showing the existence of a triable issue of fact. Plaintiff invites sheer speculation when he contends that such knowledge may be inferred from the close relationship between defendant’s wife and her daughter, defendant Karen Taggert, who was one of the tenants (see, Eddy v Tops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692). (Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Summary Judgment.) Present — Green, J. P., Pine, Wisner, Balio and Boehm, JJ.