Gill v. Welch

136 A.D.2d 940, 524 N.Y.S.2d 692, 1988 N.Y. App. Div. LEXIS 1463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1988
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Special Term properly granted summary judgment to defendant landlord dismissing plaintiff’s action for damages caused when she was bitten by a dog harbored by defendant’s tenant. In support of her motion, defendant landlord submitted sworn testimony at an examination before trial that she had no knowledge of any vicious propensities of her tenant’s dog. Plaintiff has submitted no proof to the contrary (see, Strunk v Zoltanski, 62 NY2d 572). The facts that the dog was kept enclosed in a yard or chained, particularly in view of the town’s leash law, and that it strained on its chain and barked when people approached the premises, are insufficient to create an inference that the dog was vicious. The facts in the case of Fontecchio v Esposito (108 AD2d 780), cited by plaintiff, differ substantially from the facts averred by plaintiff. In Fontecchio (supra), unlike here, before the incident giving rise to the cause of action the dog not only growled and lunged at people, but charged a mailman and bit his mail pouch, continuing his attack until he was pulled away by the owner. (Appeal from order of Supreme Court, Seneca County, Rosenbloom, J.—summary judgment.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.