        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

626
CA 16-01369
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER, JJ.


MAGGIE D. ARRINGTON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

LARRY COHEN, DEFENDANT-APPELLANT.


HAGELIN SPENCER LLC, BUFFALO (MEGAN F. ORGANEK OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WILLIAM MATTAR, P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie Court (Joseph R.
Glownia, J.), entered April 7, 2016. The order denied the motion of
defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the first cause of action, and as modified the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when defendant’s dog bit her face. We agree
with defendant that Supreme Court erred in denying that part of his
motion seeking summary judgment dismissing the first cause of action,
alleging common-law negligence (see Lista v Newton, 41 AD3d 1280,
1282), and we therefore modify the order accordingly. We further
conclude, however, that the court properly denied that part of the
motion seeking summary judgment dismissing the second cause of action,
for strict liability, inasmuch as “[d]efendant’s own submissions in
support of the motion raise a triable issue of fact whether [his] dog
had vicious propensities and, if so, whether [he] knew or should have
known of those propensities” (Lewis v Lustan, 72 AD3d 1486, 1486; see
generally Collier v Zambito, 1 NY3d 444, 446). Defendant submitted
the records of a dog daycare facility stating that defendant’s dog
“snapped at” and “growl[ed] at” other dogs “for no reason,” and that
the dog “continued to growl and snap” as he was led out of the room by
an employee. The records reflect that defendant was notified of the
dog’s behavior by telephone. The dog was described in the records as
“unpredictable,” and was not permitted to return to the daycare
facility following the three-day trial period. Defendant also
submitted plaintiff’s deposition testimony wherein she testified that,
on the night of the incident, defendant saw that the dog “nipped at”
plaintiff when she entered defendant’s home, and shortly thereafter
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                                               CA 16-01369

the dog bit plaintiff’s face.




Entered:   May 5, 2017                Frances E. Cafarell
                                      Clerk of the Court
