PRINGLE CHEEK v. NEW YORK CITY HOUSING AUTHORITY

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

Kyon L. PRINGLE, an Infant, by His Mother and Natural Guardian, Karen P. CHEEK, et al., respondents, v. NEW YORK CITY HOUSING AUTHORITY, appellant.

Decided: April 26, 1999

DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Cullen and Dykman, Brooklyn, N.Y. (Michael E. Sande of counsel), for appellant. Richard P. Neimark & Associates, L.L.P., New York, N.Y. (Carol R. Finocchio of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated February 23, 1998, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The infant plaintiff was bitten by a pit bull on premises owned by the defendant.   In order to prevail in their action against the defendant, the plaintiffs must establish that the defendant knew of the dog's presence on the premises and its vicious propensities, and that the defendant had control of the premises or otherwise had the ability to remove or confine the dog (see, Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13;  Powell v. Wohlleben, 256 A.D.2d 397, 681 N.Y.S.2d 581).

The defendant's motion for summary judgment was properly denied as it failed to present admissible evidence showing that the plaintiffs' action has no merit (see, CPLR 3212[b];  GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  see also, Cronin v. Chrosniak, 145 A.D.2d 905, 536 N.Y.S.2d 287).

In view of the defendant's failure to meet its initial burden of proof, the motion was properly denied regardless of the sufficiency of the plaintiffs' opposing papers (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

MEMORANDUM BY THE COURT.

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