126 A.D.2d 714 | N.Y. App. Div. | 1987
In an action to recover damages for personal injuries, etc., the defendant Patrick Cleary appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated July 29, 1985, which denied his motion for summary judgment dismissing the complaint insofar as it is asserted against him.
Ordered that the order is reversed, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the appellant, and the plaintiffs action against the remaining defendants is severed.
The infant plaintiff was attacked by a dog owned by tenants of the defendant landlord Patrick Cleary. The attack occurred at premises owned and leased by the defendant Cleary to the defendant Michael Morrison, pursuant to an oral lease. A review of the affidavit of the defendant Cleary, the transcripts of his examination before trial and the transcripts of the plaintiff Francine Rico’s examination before trial demonstrates that the defendant Cleary had no prior knowledge of the dog’s alleged vicious propensities. Having failed to adduce any evidence of prior knowledge on the part of the defendant Cleary of the dog’s alleged vicious propensities, there is no triable issue of fact, and summary judgment should have been granted in favor of the defendant Cleary dismissing the complaint insofar as it is asserted against him (see, Strunk v Zoltanski, 62 NY2d 572). Bracken, J. P., Lawrence, Fiber and Spatt, JJ., concur.
