                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 16, 2015                     520238
________________________________

DARIUS RODGERS, an Infant, by
   JENNIFER McCOY, His Mother
   and Guardian, et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

HORIZONS AT MONTICELLO, LLP,
                    Appellant.

(And a Third-Party Action.)
________________________________


Calendar Date:   May 27, 2015

Before:   Peters, P.J., Lahtinen, Garry and Devine, JJ.

                             __________


      Ahmuty, Demers & McManus, Hopewell Junction (Lisa L.
Gokhulsingh of Gannon, Rosenfarb & Drossman, New York City, of
counsel), for appellant.

      The Finkelstein Law Firm, Goshen (Steven A. Kimmel,
Washingtonville, of counsel), for respondents.

                             __________


Devine, J.

      Appeal from an order of the Supreme Court (Meddaugh, J.),
entered September 22, 2014 in Sullivan County, which, among other
things, denied defendant's motion for summary judgment dismissing
the complaint.

      On October 31, 2012, plaintiff Darius Rodgers (hereinafter
plaintiff) was attending a Halloween party at an apartment
complex owned by defendant. Lisa Martin and Leon Martin were the
parents of one of plaintiff's friends, and the Martins lived at
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the complex with their pit bull. Plaintiff was attacked and
bitten by the dog when he stopped by the Martins' apartment.
Plaintiff and his mother, plaintiff Jennifer McCoy, commenced
this negligence action to recover damages stemming from the
attack. Defendant, in turn, commenced a third-party action
against the Martins for contribution. Following service of its
answer and discovery, defendant moved for summary judgment
dismissing the complaint. Supreme Court, among other things,
found that questions of fact precluded a grant of summary
judgment to defendant. Defendant now appeals.

      We affirm. "A landlord may be liable for the attack by a
dog kept by a tenant if the landlord has actual or constructive
knowledge of the animal's vicious propensities and maintains
sufficient control over the premises to require the animal to be
removed or confined" (Smedley v Ellinwood, 21 AD3d 676, 676
[2005] [citation omitted]; accord Craft v Whittmarsh, 83 AD3d
1271, 1271 [2011]; see Strunk v Zoltanski, 62 NY2d 572, 575
[1984]). Defendant was empowered to require the Martins to
remove the animal and, indeed, its site manager testified that he
took steps to do so once he learned of the dog's existence in
September 2012. The site manager also testified that he was
unaware of any complaints regarding the dog, and that he only
endeavored to have it removed because tenants were not allowed to
own large dogs such as pit bulls. McCoy herself gave deposition
testimony in which she acknowledged that she did not know of any
prior incidents where the dog had attempted to bite someone. The
foregoing proof was "sufficient to satisfy defendant's threshold
burden of demonstrating that [it] had no actual or constructive
knowledge of the dog's vicious propensities, thereby shifting the
burden to plaintiff[s] to come forward with evidence in
admissible form demonstrating a triable issue of fact" (Craft v
Whittmarsh, 83 AD3d at 1272; see Alvarez v Prospect Hosp., 68
NY2d 320, 324 [1986]).

      Plaintiffs responded with evidence that included affidavits
by plaintiff and two residents of the complex who were familiar
with the behavior of the pit bull. Plaintiff averred that he had
previously watched the Martins' eldest son walk the dog, who
permitted the dog to chase children and growl, bark and jump
against its leash at them. One of the neighbors observed similar
                              -3-                520238

behavior when Lisa Martin was walking the dog, and pointed out
that Martin kept the dog muzzled during walks. Indeed, the same
neighbor was attacked by the dog in the summer of 2012, and only
escaped injuries because the dog was muzzled. Both neighbors
also stated that the Martins would often tie the dog up near the
entrance to their apartment, where it would growl, bark and lunge
at individuals who walked by. The neighbors further contradicted
the claim of the site manager that he had no awareness of the
animal's vicious propensities, stating that they had repeatedly
complained to him about the problem.1 Given this proof, we agree
with Supreme Court that plaintiffs raised "triable issues of fact
regarding [the dog's] vicious propensities and defendant['s]
notice of same" (Coole-Mayhew v Timm, 18 AD3d 948, 949-950
[2005]; see Seybolt v Wheeler, 42 AD3d 643, 645 [2007]).

      Defendant further asserts that, if it had actual or
constructive notice of the dog's vicious propensities, it did not
have a reasonable time in which to correct the problem before the
attack at issue. Plaintiffs submitted evidence suggesting that
defendant became aware of the dog over a year before the attack
occurred but, even assuming without deciding that such evidence
could not be considered, the site manager admitted that he was
aware of the dog two months before the attack. That awareness
prompted the site manager to notify the Martins that they must
rid themselves of the dog, as well as to refer the matter to
counsel so that eviction proceedings could be commenced. He
acknowledged that counsel worked "very slowly" on eviction
matters, however, and that counsel's lethargic approach
ultimately required defendant to retain new counsel. The site
manager also easily could have, but did not, contact the Martins
and encourage them to take "reasonable precautions for the
protection of third persons, . . . with respect to confinement or
control of the dog" (Strunk v Zoltanski, 62 NY2d at 577). Thus,


    1
        Defendant points out that McCoy had spoken to the two
neighbors and, during her deposition testimony, stated that
neither had told her about their prior complaints. It suffices
to say that there is nothing inherently unbelievable in the
proposition that the neighbors had previously complained about
the dog but failed to tell McCoy that they had done so.
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assuming that defendant had actual or constructive notice of the
dog's vicious propensities, questions of fact exist as to whether
it had notice of the problem "for such a period of time that, in
the exercise of reasonable care, it should have been corrected"
(Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 646 [1996]).

     Peters, P.J., Lahtinen and Garry, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
