Smrtic v. Marshall

176 A.D.2d 986, 574 N.Y.S.2d 606, 1991 N.Y. App. Div. LEXIS 12954

Opinion

— Appeals (1) from an order of the Supreme Court (White, J.), entered January 25, 1991 in Fulton County, which granted a motion by defendants Abe Dweck "and Claudia Dweck for summary judgment dismissing the complaint and all cross claims against them, and (2) from the judgment entered thereon.

Plaintiff is attempting to hold a landlord liable for injuries sustained by one who was bitten by a tenant’s dog. In support of their motion for summary judgment, the landlords in this case, defendants Abe Dweck and Claudia Dweck (hereinafter defendants), submitted an affidavit and pretrial testimony stating that they were unaware that the dog was vicious. Furthermore, plaintiff’s affidavits in opposition failed to indicate that defendants were aware of any vicious propensities of the dog. Insofar as plaintiff’s proof did not contradict defendants’ proof to the effect that defendants had no actual or constructive knowledge that the dog was vicious, Supreme Court properly granted summary judgment in defendants’ favor (see, Plue v Lent, 146 AD2d 968). Additionally, to the extent that plaintiff relies on an unsworn statement from defendant Gladys Marshall, the dog’s owner, this proof was unacceptable on a summary judgment motion (see, Jacobs v Schleicher, 124 AD2d 785).

Mahoney, P. J., Weiss, Levine and Mercure, JJ., concur. Ordered that the order and judgment are affirmed, with costs.