NICHOLS v. Allen Resnick, et al., Defendants-Appellants. (1999)

In an action to recover damages for personal injuries, the defendants Allen Resnick and Sheila Resnick appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated September 30, 1997, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them and the cross claim against them.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint insofar as it is asserted against the appellants and the cross claim against the appellants are dismissed, and the action against the remaining defendant is severed.

The plaintiff brought the instant action against Dominick Cardone and the appellants, who are Cardone's landlords, to recover damages for injuries which she allegedly sustained when Cardone's dog pulled on her coat, causing her to fall.   The record fails to indicate that the appellants were aware that the dog had vicious propensities or that the dog had ever displayed such propensities in the past (see, Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13;  see also, Gill v. Welch, 136 A.D.2d 940, 524 N.Y.S.2d 692;  compare, Fontecchio v. Esposito, 108 A.D.2d 780, 485 N.Y.S.2d 113).   Under the circumstances, summary judgment should have been granted in favor of the appellants dismissing the complaint insofar as it is asserted against them and the cross claim against them.

MEMORANDUM BY THE COURT.