SHANNON v. Christopher G. Schultz, Appellant. (1999)

Appeal from an order of the Supreme Court (Lynch, J.), entered August 10, 1998 in Schenectady County, which denied a motion by defendant Christopher G. Schultz for summary judgment dismissing the complaint and all cross claims against him.

On August 17, 1996, Amanda Shannon, an infant, was bitten by a coon dog owned by defendant Mark Schultz (hereinafter Schultz).   The incident occurred at Schultz's residence, which he leased from his brother, defendant Christopher G. Schultz (hereinafter defendant).   After plaintiff, Shannon's mother, brought the instant personal injury action, defendant moved for summary judgment dismissing the complaint and all cross claims against him.   In support of the motion, defendant supplied a transcript of his examination before trial, wherein he testified that on his various visits to the subject premises, he had found the dog to be amiable and friendly, that he had not noticed any change in the dog's temperament in the weeks preceding the accident and that, prior to this incident, he was aware of no other incidents involving the dog.   In opposition to the motion, plaintiff asserted that defendant must have known of the dog's vicious propensities because he is the dog owner's brother and was aware of the “beware of dog” sign that was posted on the dog house.   Supreme Court denied defendant's motion and this appeal ensued.

 We reverse.   To be sure, a landlord who leases premises to a tenant with the knowledge that the tenant has an animal with vicious propensities must take reasonable measures to protect others from an attack by such animal (see, Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13).   Here, however, defendant established, by proof in admissible form, that he had no knowledge of the dog's allegedly vicious propensities, thus requiring plaintiff to submit sufficient evidentiary facts to refute this prima facie showing (see, Dixon v. Frazini, 188 A.D.2d 1054, 592 N.Y.S.2d 208).   In response, plaintiff has asserted only that defendant must have been aware of the dog's vicious propensities because its owner is his brother and, further, his parents have been shown to have had knowledge of such propensities.   Plaintiff's attempt to impute such knowledge to defendant through conjecture, surmise and suspicion is clearly insufficient to defeat defendant's motion for summary judgment (see, Shapiro v. Health Ins. Plan of Greater N.Y., 7 N.Y.2d 56, 63, 194 N.Y.S.2d 509, 163 N.E.2d 333).   Moreover, plaintiff's reliance upon the presence of a “beware of dog” sign does not raise a question of fact regarding the animal's vicious propensities (see, Arcara v. Whytas, 219 A.D.2d 871, 872, 632 N.Y.S.2d 349).   Accordingly, defendant's motion for summary judgment dismissing the complaint and all cross claims against him is granted.

ORDERED that the order is reversed, on the law, without costs, motion granted, summary judgment awarded to defendant Christopher G. Schultz and the complaint and all cross claims against him dismissed.

CREW III, J.

CARDONA, P.J., MIKOLL, MERCURE and YESAWICH JR., JJ., concur.