The following papers were considered on the motion by defendants Francis J. Porreca and Rosemary Porecca pursuant to CPLR 3212 granting them summary judgment dismissing the complaint as against them: Papers Numbered Notice of Motion, Affirmation, Statement of Material Facts, Exhibits A-U, and Memorandum of Law 1 Plaintiff’s Affirmation in Opposition, Response to Statement of Material Facts, Memorandum of Law in Opposition, Exhibits A-H 2 Defendant Christopher Porreca’s Affirmation in Opposition, Exhibit A, Response to Statement of Material Facts 3 Reply Affirmation to Christopher Porreca’s Opposition, Reply to Statement of Material Facts, Reply Affirmation to Plaintiff’s Opposition, Reply to Statement of Material Facts 4 DECISION and ORDER This action arises out of plaintiff Jessica Sigmund’s claim that she was bitten by a dog belonging to defendant Christopher Porreca while she was a guest at the home of Francis and Rosemary Porecca on January 10, 2019. Plaintiff’s original complaint sounded in negligence, and this Court granted the previous motion by the moving defendants to dismiss on the ground that such an action may only be brought on a strict liability theory (see Bard v. Jahnke, 6 NY3d 592 [2006]; Collier v. Zambito, 1 NY3d 444 [2004]); however, the decision and order also granted plaintiff’s cross-motion to amend her complaint insofar as it permitted her to plead a strict liability cause of action, since it was alleged that all three defendants knew of the animal’s vicious propensity and that the moving defendants harbored the animal (see Matthew H. v. County of Nassau, 131 AD3d 135, 144 [2d Dept 2015]). Plaintiff filed an amended complaint that again included a cause of action alleging negligence, but added a second cause of action sounding in strict liability. Defendants’ dismissal motion was granted insofar as it applied to the negligence cause of action, and only the strict liability claim remained. Discovery is complete, and defendants Francis and Rosemary Porecca now move for summary judgment dismissing plaintiff’s strict liability claim against them, relying on the same rule they cited in their previous dismissal motion, that “liability will not be imposed when there is no evidence that the defendant owned, possessed, harbored, or exercised dominion and control over the dog” (see Powell v. Wohlleben, 256 AD2d 396, 396 [2d Dept 1998]). They submit their own depositions in which they assert that they do not own the subject dog and did not harbor, control, maintain or care for the dog at the time of the incident, and that the dog’s owner, their son, defendant Christopher Porreca, who was merely a temporary guest in their home at the time, never relinquished control of the dog to them. They also submit Christopher’s deposition testimony, in which he testified that the dog had always been under his care, custody and control while he and plaintiff were at his parents’ residence. In opposition, plaintiff maintains that the subject dog had a history of exhibiting vicious propensities, about which the moving defendants were aware. She relies on the parties’ depositions in this action, as well as an additional deposition of Christopher Porreca, held in an action brought by Erick Brois against Christopher Porreca in the Superior Court of New Jersey in 2018, arising out of a dog bite, and a deposition of Erick Brois held in that action. In both of his depositions, Christopher discussed a 2017 incident that occurred at his parents’ home outside of his presence, about which his father had subsequently informed him, in which his dog, Luke, bit a friend of his father’s, a man named Jim, who had tried to get Luke to play with him, causing Luke to bite him on the finger. Christopher also testified to the incident involving Erick Brois, in which, according to Christopher, Brois was provoking Luke, when he (Brois) tripped over himself and fell onto the dog, at which time Luke bit him on his leg. Brois’s deposition testimony was that he had just walked into Porreca’s apartment, and when he tried to pick up a dog toy, the dog attacked and bit him on his leg or foot. Brois added that the next morning he traveled to the medical office of Christopher’s father, defendant Francis Porreca, to consult him about how to treat the wounds. Francis Porreca acknowledged Brois’s visit to his medical office, although he recalled the wounds as “superficial nips” and “scratches.” Francis Porreca also testified regarding the incident in which Luke bit his friend Jim Peroli, on a date prior to the incident at issue here. According to his testimony, “Jim was very aggressive with the dog, grabbed the dog by his snout, and the dog nipped his finger.” They cleaned the area, put antiseptic ointment on it, and no further action was necessary. Plaintiff also relies on the portion of Christopher’s deposition testimony in which he acknowledges that he purchased a muzzle to put on Luke in the common areas of his apartment building, due to a complaint from another building resident about what Christopher termed the dog’s “leash aggression” toward other animals. Discussion Summary judgment has been awarded in dog bite liability cases where the defendants presented evidence that the dog had never bitten, jumped on, or growled at anyone prior to the incident in question, or exhibited any other aggressive or vicious behavior (see Palumbo v. Nikirk, 59 AD3d 691 [2d Dept 2009]; Bemiss v. Acken, 273 AD2d 332, 332 [2d Dept 2000]). In addition, owners of properties in which dog bite incidents occurred have been awarded summary judgment where they submitted undisputed evidence establishing that they were not aware, nor should they have been aware, that the dog in question had ever bitten anyone or exhibited any aggressive behavior (see Christian v. Petco Animal Supplies Stores, Inc., 54 AD3d 707, 708 [2d Dept 2008]; Claps v. Animal Haven, Inc., 34 AD3d 715 [2d Dept 2006]). However, neither line of cases are applicable here, where there is evidence of prior incidents of aggression by the subject dog, and some evidence that the moving defendants had knowledge of that history. Although merely being the owner of the property in which the incident occurred, or from which the dog emerged before injuring the plaintiff, is clearly insufficient as grounds for liability (see Nidzyn v. Stevens, 148 AD2d 592, 592-593 [2d Dept 1989]; Zwinge v. Love, 37 AD2d 874, 874 [2d Dept 1971]), evidence that a property owner or co-resident participates in caring for the dog may create a question of fact precluding summary judgment. In Matthew H. v. County of Nassau (131 AD3d 135 [2d Dept 2015]), the Court ruled that two co-tenants could be held strictly liable for an attack by dogs owned exclusively by a third co-tenant. The Court explained that liability can extend to other co-tenants who participated in the care of the dogs in their household to a sufficient degree to support a finding that they joined with the dog’s owner in harboring the animal (131 AD3d at 145). Moreover, even a mere building landlord may be held liable for injuries caused by a tenant’s dog on a theory of strict liability, if the plaintiff demonstrates that the landlord “(1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog” (see Velez v. Andrejka, 126 AD3d 685, 686 [2d Dept 2015]). In view of the existence of evidence that the moving defendants were present on the premises at the time, knew of Luke’s presence and his propensities, and had the right to demand that action be taken to protect a guest from harm due to Luke’s propensities, their protests merely create triable issues of fact, rather than establishing an entitlement to summary judgment (see Velez v. Andrejka, 126 AD3d at 686-687). Accordingly, it is hereby ORDERED that the motion for summary judgment dismissing the complaint as against defendants Francis and Rosemary Porreca is denied, and it is further ORDERED that the parties are directed to appear in the Settlement Conference Part of the Westchester County Supreme Court, on a date and in a manner of which they will be notified by that Part. This constitutes the Decision and Order of the Court. Dated: November 9, 2021
