BRIGGS v. Donald Wells, Appellant. (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

Edward BRIGGS, Individually and as Parent and Natural Guardian of Natasha Briggs, an Infant, Respondent, v. Thomas TAGGERT, Karen Taggert, Respondents, Donald Wells, Appellant.

Decided: November 13, 1998

Present: GREEN, J.P., PINE, WISNER, BALIO and BOEHM, JJ.

Law Offices of Lawrence Rubin by Jennifer Teach, Buffalo, for Donald Wells. Miserendino, Celniker, Seegert & Estoff, P.C., Buffalo, for Edward Briggs. Janice Valvo, Forestville, for Thomas and Karen Taggert.

Supreme Court erred in denying the motion of Donald Wells (defendant) for summary judgment dismissing the complaint against him. Plaintiff brought this action to recover damages for injuries sustained by his four-year-old daughter when she was attacked by a dog owned by defendant's tenants. Defendant established his entitlement to judgment as a matter of law by submitting proof that he was not aware of the dog's alleged vicious propensities (see, Mehl v. Fleisher, 234 A.D.2d 274, 275, 650 N.Y.S.2d 784). Plaintiff failed to come forward with evidentiary proof in admissible form showing the existence of a triable issue of fact. Plaintiff invites sheer speculation when he contends that such knowledge may be inferred from the close relationship between defendant's wife and her daughter, defendant Karen Taggert, who was one of the tenants (see, Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, 459 N.Y.S.2d 196, affd. 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243).

Order unanimously reversed on the law without costs, motion granted and complaint against defendant Donald Wells dismissed.

MEMORANDUM:

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