Alaina Nicolosi, Plaintiff, v. 197 UNION STREET HOLDING LLC (2026)

The following papers were read and considered on the summary judgment motion filed by Defendant 197 Union Street Holding LLC ("Defendant Union Street"):

Document: NYSCEF Doc. No(s).:

NOTICE OF MOTION 35

ATTORNEY AFFIRMATION IN SUPPORT and EXHIBITS A—H 36—44

MEMORANDUM OF LAW 45

ATTORNEY AFFIRMATION IN OPPOSITION and EXHIBIT 1 52—53

ATTORNEY AFFIRMATION IN REPLY54

This is an action for personal injuries arising out of a dog bite incident. On May 9, 2023, Plaintiff was visiting at the apartment of a co-worker, Defendant Jennifer Contreras, who owned a large dog. While in the same room with the dog, it jumped up at Plaintiff without warning, biting her face and right hand. As a result of the incident, Plaintiff claims to have suffered serious and permanent injuries.

Plaintiff commenced this action on August 23, 2024, asserting causes of action for negligence / strict liability against Defendant Conteras and against her landlord, Defendant Union Street. Defendant Contreras answered the complaint pro se on October 23, 2024, without asserting any cross-claims. Defendant Union Street answered on February 20, 2025, and asserted a cross-claim against Defendant Contreras for common-law indemnification or contribution. Following the close of discovery, Defendant Union Street now moves for summary judgment to dismiss the complaint as asserted against it, arguing that it had no notice of any vicious propensities or other dangerous condition presented by the dog.

On a motion for summary judgment "[t]he movant 'must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact' " (Bazdaric v Almah Partners LLC, 41 NY3d 310, 316 [2024], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If the movant has met this threshold burden, to defeat the motion the opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 320; CPLR 3212[b]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

As relevant here:

A plaintiff who suffers an animal-induced injury . . . has a choice. If the owner knew or should have known the animal had vicious propensities, the plaintiff may seek to hold them strictly liable. Or they can rely on rules of ordinary negligence and seek to prove that the defendant failed to exercise due care under the circumstances that caused their injury. Of course, a plaintiff might also assert both theories of liability[.]

(Flanders v Goodfellow, 44 NY3d 57, 72 [2025]). As to the appropriate "ordinary negligence" standard for the landlord of property where an animal is kept, it does not appear that any appellate-level court has yet issued a relevant opinion following the Court of Appeals' decision in Flanders, which re-established ordinary negligence as a basis for animal injury claims. Accordingly, ordinary principles of premises liability are presumed applicable.

An owner or possessor of real property "has a duty to maintain that property in a reasonably safe condition" (Shermazanova v AmeriHealth Med., P.C., 173 AD3d 796, 797 [2d Dept 2019], citing Basso v Miller, 40 NY2d 233, 241 [1976]). "A defendant moving for summary judgment in a [premises liability] case may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that it neither created the hazardous condition that allegedly caused the plaintiff's injuries nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" (Belton v Gemstone HQ Realty Assoc., LLC, 145 AD3d 840, 841 [2d Dept 2016]).

In support of its motion, Defendant Union Street submits transcripts of the depositions of its principal and of the property manager for Defendant Contreras's apartment building. The principal testified that he was familiar with Defendant Contreras's dog, had not witnessed any aggressive or similar behavior by the dog, and had petted it on more than one occasion. The property manager testified that he had never received any complaints about the dog, had little experience with it, and although he had heard the dog bark, it was "not excessively or violently or anything like that[.]" Defendant Union Street also submits the deposition transcripts of Plaintiff and Defendant Contreras, each of whom testified that they had not personally witnessed or reported any vicious behavior by the dog. Based on this evidence, Defendant Union Street has established, prima facie, that it did not have and could not have had notice of any vicious propensities or other dangerous condition related to the dog.

In opposition, Plaintiff submits only an affirmation of counsel, who argues that Defendant Union Street's property manager "knew or should have known the dog . . . had vicious propensities prior to the bite in question, as he would often hear the dog bark at the property when he would perform maintenance services." This conclusory statement is insufficient to raise a triable issue of fact, as "[k]nowledge of normal canine behavior, such as . . . barking at another dog or passersby [or] barking at strangers . . . will not support a finding of knowledge of vicious propensities" (Johnson v Meneses, 236 AD3d 881, 882-83 [2d Dept 2025]). Accordingly, Defendant Union Street is entitled to summary judgment.

Based on the foregoing, it is hereby

ORDERED that Defendant Union Street's motion for summary judgment is granted, and the complaint is dismissed insofar as asserted against it; and it is further

ORDERED that the caption of this action is amended to hereafter read as follows:

ALAINA NICOLOSI,

Plaintiff,

against

JENNIFER CONTRERAS,

Defendant.

Index No.: 2024-53971

; and it is further

ORDERED that within ten (10) days of the date hereof, Defendant Union Street shall give notice to the Dutchess County Clerk of the Court's order amending the caption (CPLR 8019[c]).

A pretrial / settlement conference remains scheduled for September 8, 2026 at 9:30 a.m., at which time Defendant Contreras and counsel for Plaintiff should be prepared and have full authority to discuss settlement.

The foregoing constitutes the decision and order of the Court.

Dated: July 13, 2026

Poughkeepsie, New York

ENTER:

MARIA G. ROSA, J.S.C.

Maria G. Rosa, J.