Strunk v. Zoltanski

— In a negligence action to recover damages for personal injuries, etc., defendant Sophie Zoltanski appeals from so much of an order of the Supreme Court, Orange County (Rosenblatt, J.), dated May 3, 1982, as denied that branch of defendants’ motion for summary judgment as sought dismissal of the complaint as against her. Order affirmed, insofar as appealed from, with costs. On May 8, 1979, the infant plaintiff, while an invitee on certain leased premises, was bitten" on his mouth and arm by a German Shepard harbored by appellant Sophie Zoltanski’s tenant. Thereafter, the infant’s mother commenced a negligence action on behalf of her infant son to recover for his personal injuries and on her own behalf to recover for loss of his services. Plaintiffs’ pleadings and affidavits in opposition to defendants’ motion for summary judgment pursuant to CPLR 3212 allege that appellant, the absentee landlord and owner of the demised premises, had actual knowledge prior to leasing the premises to her tenant that said tenant owned a dog with vicious propensities and, notwithstanding this knowledge, allowed the tenant to harbor said dog on the leased premises. Appellant denies these allegations. The branch of the motion for summary judgment which sought dismissal of the complaint as against appellant was based on the premise that assuming, arguendo, an issue of fact did not exist with respect to actual knowledge, the complaint would have to be dismissed because it fails to state a cognizable cause of action against her. We disagree. The law of this State generally has precluded a landlord’s liability for injuries to his tenant’s invitees from a dangerous condition or nuisance on the demised premises which comes into existence after the tenant has taken possession (see Kilmer v White, 254 NY 64, 69). The rationale for this rule is grounded in property law, which regards a lease as equivalent to a sale of the land for the term of the lease (see Restatement, Torts 2d, § 355, Comment a). In the absence of an agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest (Prosser, Torts [4th ed], § 63, p 400). Consequently, court decisions which have precluded the imposition of liability on a landlord for injuries to a third person occasioned by a vicious or dangerous animal kept by a tenant on the leased premises were based upon either the landlord’s absence of control over the leased premises (see Zwinge v Love, 37 AD2d 874; Theobald v Grey Public Relations, 39 AD2d 902; Simpson v Griggs, 58 Hun 393; Denagy v Doscher, 40 Mise 2d 643; cf. Siegel v 1536-46 St. John’s Place Corp., 184 Mise 1053; Landlord’s Liability to Third Person for Injury resulting from Attack by Dangerous or Vicious Animal Kept by Tenant, Ann., 81 ALR3d 638), or lack of actual knowledge of the animal and its dangerous proclivities (see Laguttuta v Chisolm, 65 App Div 326, 330). Absent an allegation that the landlord was in control, the landlord’s actual knowledge of any vicious propensity on the part of the animal, where said knowledge was acquired after the initial letting, is immaterial. Unlike the afore-noted cases, the alleged facts in this matter, if proven at trial, could support a finding that the appellant had prior actuál knowledge that a prospective tenant intended to' harbor a dog with vicious propensities at the inception of the leasehold. At such a time the landlord would still retain a measure of control over the leased premises, and by the exercise of reasonable care, could obviate a reasonably foreseeable risk of injury to the third persons lawfully upon the leased premises by the simple expedient of refusing to lease 1075 to the prospective tenant or by imposing a condition on the lease prohibiting the harboring of said animal on the demised premises. Under such circumstances, the law may impose a duty upon the landlord to exercise ordinary care to keep the leased premises in a safe condition on behalf of third parties and the failure to exercise such care may result in liability. Since plaintiff alleges the necessary elements of control and actual knowledge to bring this case outside the ambit of the general rule, a cognizable cause of action is stated against appellant and a trial is required to resolve the factual issues. Bracken, J. P., Brown and Boyers, JJ., concur.