This is an action to recover for personal injuries allegedly sustained by plaintiff as a result of her being attacked and bitten on February 16, 2006, by a pit bull owned by defendant Solow. In her complaint, plaintiff alleges that defendant Castaldi owned the premises where defendant Kaltsas resided as a tenant and that defendant Kaltsas "allowed the dog to roam around on the premises unrestrained even though he had actual notice of the dangers and propensities of the ... dog." Plaintiff alleges negligence against [*2]defendants in the "ownership, control, supervision and lack of due care over the dog" and an inarticulately pleaded cause of action alleging gross negligence.^[FN1]

Defendant Solow allegedly has defaulted in answering ^[FN2] and defendant Castaldi presently is moving for summary judgment dismissing the complaint. In support of his motion, defendant Castaldi submits his affidavit wherein he avers that at the relevant time he had owned premises located at 30 High Street, which he had leased to two people, one of whom was named "Finn." According to Castaldi, defendant Solow was Finn's girlfriend and thus technically not his tenant. Defendant Castaldi was aware that Solow had two dogs, and he states that "neither of them ever displayed any viciousness or aggressiveness. In fact, the dogs were very gentle and docile." He specifically denies any knowledge of an aggressive tendency by either dog.

Further, defendant Castaldi has submitted supporting affidavits from Domenica Mustac, his long-term live-in girlfriend, and from Maria Romeo, defendant's bookkeeper, and from Carolyn and Chris Carter, both of whom are defendant's friends and former neighbors of the subject premises. Each avers familiarity with defendant Solow's dogs and states that s/he had the opportunity to observe and interact with the dogs on numerous occasions and that the dogs were "very gentle and docile." According to each of these persons, the dogs never had displayed any viciousness or aggressiveness.

Further, defendant Castaldi denies that the alleged attack had occurred on his property. He points to plaintiff's counsel's July 6, 2005, correspondence to him wherein counsel states that the attack had occurred while plaintiff "was walking in the park." Notably, although defendant had served on December 1, 2006, a Combined Demand for Discovery and Inspection which, inter alia, requested that plaintiff specify the location of the alleged accident, plaintiff apparently has not responded to same.

Based upon the foregoing which defendant argues establishes that the attack had not occurred on his property and that he had no [*3]prior knowledge of Solow's dog's alleged vicious propensities, defendant Castaldi submits that he is entitled to judgment as a matter of law dismissing this action.

Plaintiff opposes the motion, arguing that same is premature in light of the fact that discovery barely has commenced and no depositions have taken place. Plaintiff maintains that she has not had the opportunity to cross-exam defendant Castaldi's testimony regarding his knowledge of the dog's vicious propensities, and his relationship with defendant Solow and the location of the incident, and thus that there remain issues of fact with respect to same.

It is well-settled that on a motion for summary judgment, the Court is called upon to determine whether a bona fide issue exists. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See, e.g., Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1990); Zuckerman v. City of New York, 49 NY2d 557 562 (1980). Although the papers are carefully scrutinized in the light most favorable to the party opposing the motion, see Robinson v. Strong Memorial Hospital, 98 AD2d 976 (4th Dept. 1983), and summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact, see Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978), bald, conclusory assertions and the "shadowy semblance of an issue" are insufficient to defeat a summary judgment motion. Ehrlich v. American Moninga Greenhouse Manufacturing Corp., 26 NY2d 255, 259 (1970); see, also, S.J. Capelin Associates v. Globe Mfg. Co., 34 NY2d 338 (1974); Blankman v. Incorporated Village of Sands Point, 249 AD2d 349 (2nd Dept. 1998). Rather, it is incumbent upon a party who opposes a summary judgment motion to "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and capable of being established upon a trial." DiSabato v. Soffes, 9 AD2d 297, 301 (1st Dept. 1959), app. dsmd. 11 AD2d 660 (1st Dept. 1960); see, also, S. J. Capelin Associates v. Globe Mfg. Co., supra; Seaman-Andwall Corp. v. Wright Machine Corp., 31 AD2d 136 (1st Dept. 1971), affd. 29 NY2d 617 (1971).

Further, the law is long well settled that to prevail on a strict liability claim for injuries sustained by a domestic animal, a plaintiff must present proof of the animal's vicious propensities and that defendant knew or should have known about them. See Collier v. Zambito, 1 NY3d 444, 448 (2004); Marek v. Burmester, 37 AD3d 668 (2nd Dept. 2007); Hun v. F & M Enterprise of Corona Corp., 293 AD2d 572 (2nd Dept. 2002); Lydon v. Reviaska, 284 AD2d 508 (2nd Dept. 2001); Maher v. C & A Auto Parts, Inc., 279 AD2d 459 (2nd Dept. 2001), lv. to app. den. 96 NY2d 710 (2001). New York no longer recognizes a common law theory of negligence relating to dog bite actions. See Claps v. Animal Haven, Inc., 34 AD3d 715 (2nd Dept. 2006). [*4]

Initially this Court finds in the action at bar that plaintiff has not properly pleaded a strict liability cause of action against defendants; rather, she has pleaded only a negligence cause of action and a cause of action for gross negligence warranting imposition of punitive damages. Since there exists no viable cause of action for common law negligence, the Court finds that defendant is entitled to summary judgment dismissing the complaint. See Sherman v. Torres, 35 AD3d 436 (2nd Dept. 2006).^[FN3]

While this Court ordinarily would afford plaintiff the opportunity to properly re-plead a strict liability cause of action, such relief is denied in this instance based upon the evidence presented. Firstly, not only does the complaint not allege that the dog had attacked plaintiff while on defendant Castaldi's property, but plaintiff's counsel's July 6, 2005, correspondence to defendant indicates that the attack had occurred in a park, and plaintiff herself has submitted an affidavit wherein she states that the attack had occurred "at a park at or near the backyard of defendant's residence." Notwithstanding plaintiff's claim herein to the contrary, the foregoing conclusively establishes that the dog attack had not occurred on defendant's property. This Court is not aware of any authority, and plaintiff cites none, supporting landlord liability in this circumstance. See Ruffin v. Dykes, 37 AD3d 1191 (4th Dept. 2007); Braithwaite v. Presidential Property Services, Inc., 24 AD3d 487 (2nd Dept. 2005); Weipert v. Oldfield, 298 AD2d 974 (4th Dept. 2002); Terrio v. Daggett, 208 AD2d 1163 (3rd Dept. 2002);

Moreover, the overwhelming evidence at bar demonstrates that the subject dog was docile and had no history of aggressive behavior, and that defendant Castaldi had no knowledge of the dog having a vicious propensity. Such prima facie demonstrates defendant's lack of responsibility for the alleged attack. See Cohen v. Kretzschmar, 30 AD3d 555 (2nd Dept. 2006); Nikitin v. Lexandra, 24 AD3d 522 (2nd Dept. 2005); Slacin v. Aquafredda, 2 AD3d 624 (2nd Dept. 2003).

Finally, this Court is not persuaded by plaintiff's argument that the lack of discovery requires that this motion be denied as premature. Firstly, since this Court finds that the accident did not occur on defendant's property, there simply is no liability attributable to defendant Castaldi and no amount of discovery will change this fact. See Terrio v. Daggett, supra, 208 AD2d 1163.

Secondly, before a party may resort to CPLR 3212, subdivision (f) to defeat summary judgment, s/he must demonstrate that the needed proof is within the exclusive knowledge of the moving party, that the opposing claims are supported by something other than mere [*5]conjecture, suspicion or surmise, and that the party has at least made some attempt to discover facts at variance with the moving party's proof. See Chemical Bank v. Pic Motors Corp., 50 NY2d 1023, 1026 (1983); Denkensohn v. Davenport, 130 AD2d 860, 861 (3rd Dept. 1987). Plaintiff here has failed to demonstrate the necessary diligence on her part demonstrating that her claimed ignorance of essential facts is unavoidable and that she is not merely seeking a fishing expedition. See Downey v. Schneider, 23 AD3d 514 (2nd Dept. 2005); State of New York v. Wisser Co., 170 AD2d 918, 920 (3rd Dept. 1991); see, also Karakostas v. Avis Rent A Car Sys., 301 AD2d 632 (2nd Dept. 2003); Snipe v. Hennie, 11 Misc 3d 1075(A) (Sup. Ct. Kings Co. 2006). The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient to deny motion for summary judgment. See Neryaev v. Solon, 6 AD3d 510 (2nd Dept. 2004).

Accordingly, defendant Castaldi's motion for summary judgment is granted.

To the extent that this Court has found that plaintiff has not properly asserted a proper strict liability cause of action, plaintiff's counsel shall submit within twenty (20) days after the date hereof a memorandum of law addressing why this action should not be dismissed against the allegedly defaulting co-defendant. Failure to timely comply herewith shall result in the issuance of an Order, on May 15, 2007, dismissing this action.

Dated: April 17, 2007

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C.