Ruffin v. Dykes

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered October 3, 2005 in a personal injury action. The order denied the motion of Crayg Dykes to dismiss the complaint against him. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendant Crayg Dykes is dismissed. Memorandum: Crayg Dykes (defendant) appeals from an order denying his motion to dismiss the complaint against him pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Plaintiff commenced this action seeking damages for injuries sustained by her son when he was attacked in plaintiffs yard by a dog owned by defendant Dana Heines, defendant’s tenant. Because the incident did not occur on defendant’s property and therefore defendant owed no duty of care to plaintiffs son (see Weipert v Oldfield, 298 AD2d 974 [2002]; Shen v Kornienko, 253 AD2d 396 [1998]; Terrio v Daggett, 208 AD2d 1163 [1994]), we conclude that Supreme Court erred in denying defendant’s motion. We therefore reverse the order, grant the motion and dismiss the complaint against defendant. Present— Scudder, EJ, Hurlbutt, Gorski and Pine, JJ.