Frantz v. McGonagle

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied the cross motion of Patrick H. Moreton (defendant) for summary judgment dismissing the complaint against him. Plaintiffs son, an infant, was bitten by a dog, a pitbull/rottweiler or german shepherd mix, harbored by defendant’s tenants. Plaintiffs son testified at his examination before trial that the dog had bitten him on a prior occasion and that defendant had observed that incident from a distance of about 22 feet. Plaintiff submitted an affidavit of a neighbor of defendant indicating that defendant was present on a prior occasion when the dog growled at defendant’s grandchildren. Defendant’s denial that either incident occurred presents an issue of credibility that must be determined by the trier of fact. Moreover, plaintiff submitted evidence that “Beware of Dog” signs were posted on the property owned by defendant, of which defendant was aware. Although the presence of the signs, standing alone, is not sufficient to impute notice to defendant (see, Arcara v Whytas, 219 AD2d 871, 872), that evidence in combination with the other evidence is sufficient to raise an issue of fact concerning defendant’s prior knowledge of the dog’s vicious propensities (see, Cronin v Chrosniak, 145 AD2d 905). (Appeal from Order of Supreme Court, Erie County, Mahoney, J.—Summary Judgment.) Present—Denman, P. J., Hayes, Callahan, Doerr and Boehm, JJ.