Plue v. Lent

Kane, J. Appeal from an order of the Supreme Court (Conway, J.), entered February 25, 1988 in Albany County, which denied defendant’s motion for summary judgment dismissing the complaint. On August 23, 1982, while in the backyard of defendant’s premises in the Town of Colonie, Albany County, plaintiff Keri D. Plue, an infant, was bitten by an Afghan hound owned by defendant’s lessee. The lease was oral and was negotiated on behalf of defendant, a full-time student, by her parents. During the course of negotiations, the lessee informed defendant’s mother that he was the owner of an Afghan hound, and although it was their policy not to allow dogs on this particular property, upon the lessee’s representation that it was a "good dog”, the dog was permitted to remain. No further inquiry was made regarding the dog’s disposition and no opportunity was provided to observe the dog prior to the lessee’s entry upon the premises. Thereafter, on occasions when defendant’s parents visited the premises to collect the rent, they observed the dog tied in the backyard with no indication of any vicious propensities. Defendant never saw the dog nor did she know that her tenant maintained a dog on her premises. After this action was commenced, defendant moved for summary judgment dismissing the complaint. In denying defendant’s motion, Supreme Court relied upon affidavits of the infant plaintiff’s grandparents, which related their observations of vicious propensities on the part of the dog, and concluded that questions of fact were raised as to whether defendant knew or should have known of the dog’s vicious nature. We reverse. It is now the law in New York that a landlord who leases premises to a tenant "with knowledge that [the] prospective tenant has a vicious dog” must take reasonable measures to protect others on the premises from an attack by the dog (Strunk v Zoltanski, 62 NY2d 572, 573). However, here, in support of her motion for summary judgment, defendant established prima facie that she did not know of any vicious propensities on the dog’s part. It was then mandatory for [969] plaintiffs to submit evidentiary facts rebutting this prima facie showing and demonstrating the existence of a triable issue of fact (see, Bingham v Godfrey, 114 AD2d 987, 988, appeal dismissed 67 NY2d 753; Piccolo v De Carlo, 90 AD2d 609, 610). This plaintiffs failed to do. The affidavits that they submitted simply set forth instances of alleged vicious behavior by the dog observed by third parties. There were no assertions of any actual knowledge on defendant’s part, or that of her parents as agents, of any vicious tendencies of the dog at the time of the origin of the lease (see, Gill v Welch, 136 AD2d 940; cf., Merwin v McCann, 129 AD2d 925). This did not supply the evidentiary showing necessary to successfully resist the summary judgment motion. Additionally, this is not a situation where knowledge of vicious propensities can be implied due to the type of dog involved, such as a German Shepherd, a breed said to have inherited vicious tendencies from its ancestor, the wolf (see, Strunk v Zoltanski, supra, at 578, n 1 [Kaye, J., dissenting]). Here, the tenant’s dog was an Afghan hound, a noble and dignified animal, which, when properly treated, is aloof to strangers and characteristically gentle with everyone. Order reversed, on the law, without costs, motion granted, summary judgment awarded to defendant and complaint dismissed. Mahoney, P. J., Kane, Casey and Mercure, JJ., concur.