defendant Vera Realty Corporation (Vera) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiff Janine Gordon as well as any cross-claims asserted against it.

This action arises out of an incident that occurred on January 18, 1997, in which plaintiff was attacked and bitten by a dog owned by Grace Roselli a/k/a Grace Louhaichy (Roselli). At the time of the accident, plaintiff and Roselli were living as roommates in a building owned by Vera and located at 68 John Street in Brooklyn. Plaintiff and Roselli entered into a lease, signed by both women as co-tenants, for a five-year period beginning October 1, 1996. Plaintiff testified at her deposition that she had been introduced to Roselli's dog, a mixed-breed pit bull [*2]named Tar, at Roselli's previous apartment, which was located in another building owned by Vera (or a related entity) and located at 68 Jay Street in Brooklyn. Plaintiff stated that sometime in late 1995 or early 1996 Roselli informed her of Tar's previous aggressive behavior, including incidents in which the dog bit a woman on the thigh inside an apartment in Manhattan, ripped the clothing of a man in the elevator of 68 Jay Street, and lunged at and tore the clothing of a homeless man who asked for change. Despite her knowledge of Tar's vicious behavior, plaintiff agreed to move in with Roselli and Tar in October 1996. After the two women moved into the apartment, they often allowed Tar to roam unrestrained around the space. Plaintiff cared for Tar when Roselli was on vacation, at times letting the dog sleep with her in her bed.

On the day of the incident, plaintiff testified that she and Roselli had been cleaning the apartment and were chatting in Roselli's room. Plaintiff rested her foot on a tire swing, which was suspended from the ceiling as a toy for Tar. Plaintiff was aware that the dog sometimes swatted at the tire swing with his paws and gnawed on the tire. After plaintiff placed her foot on the tire, she stated that Tar placed his mouth over her foot. Plaintiff then removed her foot from the tire swing. Roselli chastised Tar and then placed her foot on the swing to see if Tar would respond in the same manner. When Tar did not respond to Roselli's foot on the swing, plaintiff, at Roselli's request, placed her foot on the swing once more to test the dog's reaction. This time, Tar lunged at plaintiff, biting her thigh in two places. Plaintiff's injuries required at least 40 sutures and a skin graft.

On or about May 14, 1997, plaintiff commenced the instant action against Vera and Roselli. Roselli was dismissed from the action based on lack of service but was subsequently reinstated through the commencement of a new action and consolidation. Roselli later issued a notice of bankruptcy to plaintiff and obtained discharge of debtor status on or about October 21, 1999. Roselli's attorneys then moved to withdraw as her counsel in this action and were permitted to do so; it appears from the record that she remains unrepresented by counsel.

In her complaint, plaintiff outlines two causes of action against Vera, the movant herein, one sounding in strict liability and one in negligence. Plaintiff asserts that Joshua Guttman, the principal of Vera, knew of Tar's vicious propensities and maintained control over the subject apartment. In support of such allegation, plaintiff presents the affidavit of Sharon Strassfeld, who mediated a dispute between plaintiff and Guttman over a rent payment issue, in which she states that Guttman said at the mediation that he knew of Tar's vicious propensities and of a prior incident in which Tar attacked a man at 68 Jay Street, a building which he owned.

In support of its motion for summary judgment, Vera presents Guttman's deposition testimony, in which he states that he had seen the dog before the subject accident but was not aware that the dog had bitten anyone before it attacked plaintiff. At his deposition, Guttman claimed that he did not know of the dog's vicious propensities and did not remember saying that he knew the dog was dangerous. Vera also alleges that plaintiff's actions in placing her foot on the tire swing constituted an intervening act and superceding cause of the dog bite, relieving the landlord of liability.

"To recover against a landlord in strict liability for a dog bite, a plaintiff 'must prove that the landlord had notice that the dog was being harbored on the premises, and that the landlord knew or should have known that the dog had vicious propensities'" (Wilson v Livingston, 305 AD2d 585, 586 [2003], quoting Madaia v Petro, 291 AD2d 482 [2002]). However, even though [*3]liability in dog bite cases is absolute and not dependant on proof of negligence, a dog owner can be relieved of liability where it can be shown that the injured plaintiff had full knowledge of the dog's vicious propensities and voluntarily brought about the injury (Morales v Quinones, 72 AD2d 519 [1979]). Thus, it logically follows that a landlord, who has less control over a dog than an owner, can be relieved from liability in the same situation. In Vannucci v Vannucci (180 Misc 2d 182 [1999]), the court held that the adult son of the dog's owners, who was bitten by his parents' dog while visiting their residence, could not recover for his injury based on strict liability since he had personal knowledge of the dog's vicious propensities. That court found that the plaintiff's personal knowledge of the dog "removes this case from those situations where strict liability must be imposed" (id. at 184; see also DeGrazia v Castronova, 48 AD2d 249 [1975]).

In the instant case, plaintiff chose to move into an apartment with Tar, in spite of her knowledge of the dog's previous vicious behavior. Plaintiff did not require that her roommate keep the dog chained or caged, but allowed the dog to roam the apartment and to sleep on her bed. At the time of the accident, plaintiff placed her foot on the dog's toy, even after the dog reacted aggressively to her doing so. In such a situation, plaintiff's behavior in light of her knowledge of the dog's vicious propensities removes this situation from one where strict liability would be appropriate.

Plaintiff's other cause of action against Vera sounds in negligence. While it is clear that a landlord has a duty to protect third parties from the dog of a tenant where the landlord has knowledge of the dog's vicious propensities and control of the premises, no liability should attach where the plaintiff assumed the risks involved in her situation (see Arbegast v Bd. of Ed. of South New Berlin Cent. Sch., 65 NY2d 161 [1985]; Hommel v Benshoff, 178 Misc 2d 1038 [1998]). Here, plaintiff assumed the risks entailed by living with an aggressive dog when she moved into the apartment with Tar with full knowledge of his previous aggressive behavior, and when she placed her foot on Tar's toy after his previous violent reaction. "[I]t is well-established that the doctrine of implied assumption of the risk may be a viable defense in so-called dog bite cases" (Pisciotta v Parisi, 155 AD2d 422, 422 [1998]). Plaintiff's injuries were precipitated by her own actions, including living with the dog, allowing the dog to roam free in the apartment, and placing her foot on the dog's toy (see Seiden v A. Silmac Glass Corp., 251 AD2d 141 [1998]). While the dog had vicious propensities of which the landlord may or may not have been aware, plaintiff was fully aware of such propensities and nevertheless engaged in the above-described behavior. "Obviously, there can be no negligence on the part of the owner in not instructing a person as to that which he already knows; and if, before injury, such person ascertain all the information which could have been imparted to him, he is thereafter charged with knowledge thereof" (Hosmer v Carney, 228 NY 73, 76 [1920]). Similarly, negligence cannot be imputed to a landlord for not protecting a tenant from a dog living in her own apartment, where such tenant admittedly had full knowledge of the dog's vicious history and where such tenant's actions served to bring about the attack.

Accordingly, defendant Vera Realty's motion for summary judgment is granted in its entirety.

The foregoing constitutes the decision, order and judgment of the court.

Dated: June 29, 2004E N T E R, [*4]

J. S. C.