MOOREHEAD v. Khalid Bey, Defendant-Appellant. (2006)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered February 25, 2005, which, in an action by an infant and his mother against a property owner and a dog owner for dog bite injuries, denied defendant property owner's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Evidence that defendant permitted a guest's dog to remain on his property during a birthday party attended by young children, even after the dog, a six-month-old pit bull, began to bark constantly as children played near him and showed other signs of becoming aggressive, raises an issue of fact as to whether defendant was negligent in maintaining his property in a reasonably safe condition (see Schwartz v. Armand Erpf Estate, 255 A.D.2d 35, 688 N.Y.S.2d 55 [1999], lv. dismissed 94 N.Y.2d 796, 700 N.Y.S.2d 428, 722 N.E.2d 508 [1999];  Espejo v. Reuven Holding Ltd., 308 A.D.2d 373, 764 N.Y.S.2d 275 [2003] ).   It is for the jury to decide whether defendant did maintain his property in a reasonably safe condition by having the dog tied up under the deck in the backyard and repeatedly announcing to his guests to stay away from the dog.   It is also for the jury to decide whether any negligence on his part was superseded by plaintiff mother's alleged negligence in allowing the infant plaintiff to pet the dog (see Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ).