Pringle v. New York City Housing Authority

260 A.D.2d 623, 689 N.Y.S.2d 181, 1999 N.Y. App. Div. LEXIS 4300

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated February 23, 1998, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The infant plaintiff was bitten by a pit bull on premises owned by the defendant. In order to prevail in their action against the defendant, the plaintiffs must establish that the defendant knew of the dog’s presence on the premises and its vicious propensities, and that the defendant had control of the premises or otherwise had the ability to remove or confine the dog (see, Strunk v Zoltanski, 62 NY2d 572, 575; Powell v Wohlleben, 256 AD2d 397).

The defendant’s motion for summary judgment was properly denied as it failed to present admissible evidence showing that the plaintiffs’ action has no merit (see, CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; Zuckerman v City of New York, 49 NY2d 557, 562; see also, Cronin v Chrosniak, 145 AD2d 905).

In view of the defendant’s failure to meet its initial burden of proof, the motion was properly denied regardless of the sufficiency of the plaintiffs’ opposing papers (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Ritter, J. P., Altman, Goldstein and McGinity, JJ., concur.