The defendant, Arnold Baum (hereinafter, "Baum"), moves for summary judgment pursuant to CPLR 3212, and seeks the dismissal of the complaint against him.^[FN1] Defendants, Brian [*2]Bauerfiend and Dawn Roemer (hereinafter, "Bauerfiend and Roemer") filed a reply affirmation to the within motion, in which they ask the Court to find Baum liable for any damages because he leased the premises to Bauerfiend and Roemer and knew they had a dog.^[FN2] The plaintiffs oppose the motion.

Plaintiffs commenced this action by filing a summons and complaint on June 14, 2012. Issue was joined by Baum by filing an answer on June 28, 2012. The complaint is for negligence, alleging that on September 11, 2011, Bauerfiend's and Roemer's mixed-breed dog, Blue, bit Plaintiff, Felicia Reichenbaugh (hereinafter, "Plaintiff"), on the face, while she was lawfully visiting Bauerfiend's and Roemer's residence. The complaint alleges that Bauerfiend and Roemer "wrongfully kept, harbored, and maintained" Blue, knowing he had propensities of a vicious and ferocious nature. Plaintiff and her father are suing Baum, for negligence, alleging that he was and is the owner of the subject premises rented by Bauerfiend and Roemer and knew they owned and kept a dog on the premises, which he knew had a vicious and ferocious nature.

Depositions of the plaintiffs were conducted on March 12, 2013. Depositions of Bauerfiend and Roemer were conducted on March 12, 2013. Mr. Baum's deposition was taken on March 13, 2013. Baum provided copies of the transcripts of those depositions with his motion for summary judgment.

In support of his motion for summary judgment Baum argues that at no time was Baum aware of any vicious or ferocious propensities of Blue. Baum alleges that during the time of the incident, Bauerfiend and Roemer rented a house from him, said house located at 790 North Branch-Callicoon Center Road, Callicoon Center, New York. Baum resided at 4498 State Route 17B, Callicoon, New York. Baum was aware that Bauerfiend and Roemer owned and kept Blue at the house, but had no knowledge of whether the dog had ever bitten anyone prior to September 11, 2013. There is no evidence that Baum had ever received complaints from anyone about Blue, and no animal control officer or law enforcement officer had ever reported any concerns to him about Blue. Baum alleges that he had met Plaintiff's father, Charles Reichenbaugh (hereinafter "Reichenbaugh") on several occasions prior to September 11, 2011, and that Reichenbaugh never mentioned anything about the dog. Reichenbaugh's testimony at his own deposition confirms this allegation, as he testified that he met Baum on several occasions, spoke with him cordially, and never mentioned to Baum he had any concern about the dog. Reichenbaugh's despotition testimony further indicates he did not, in fact, have any safety concerns regarding Blue. [*3]

Reichenbaugh testified that he played with Blue and never observed any aggressive behavior by the dog; he stated that he was comfortable enough with the dog that he had no concern about his child being around Blue.

On a motion for summary judgment, the movant must establish by admissible proof, the right to judgment as a mater of law. Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]. The burden shifts to the opponent of the motion to establish by admissible proof, the existence of genuine issues of fact. Zuckerman v. City of New York, 49 NY2d 557 [1980]. It is well established that on a motion for summary judgment, the court's function is issue finding, not issue determination. Barr v. County of Albany, 49 NY2d 557 [1980], and all evidence must be viewed in the light most favorable to the opponent to the motion. Davis v. Klein, 88 NY2d 1008 [1996].

A landlord may be held liable for an attack by a tenant's dog only if the landlord has actual or constructive knowledge of the animals' vicious propensities and maintains sufficient control over the premises to require the animal to be removed or confined. Craft v. Whittmarsh, 83 AD3d 1271 [3rd Dept. 2011]; see also, Smedly v. Ellinwood, 21 AD3d 676 [3rd Dept. 2005]; Strunk v. Zoltanski, 62 NY2d 572 [1984]. A landlord may be held strictly liable if, with knowledge of the vicious propensities of an animal, leases the premises to the tenant, thereby creating a foreseeable risk. Id., at 575. A landlord cannot, however, be held strictly liable for the actions of a tenant's domestic animal simply because he or she leased the premises to a tenant with a pet. See, Strunk v. Zoltanski, supra; Sarno v. Kelly, 78 AD3d 1157 [2nd Dept. 2010]. "The presence of a Beware of Dog' sign, standing alone, is insufficient to impute notice of a dog's viciousness," or that the dog is even vicious or dangerous. Smedly v. Ellinwood, 21 AD3d at 676. In addition, it is not the law in New York that specific or certain breeds of animals are inherently dangerous, thereby charging an owner/tenant and landlord with constructive or actual knowledge of a propensity toward viciousness. Bard v. Janhke, 6 NY3d 592, 599 [2006]. Indications of vicious or ferocious propensity by a dog may include a prior biting or attacking incident, or evidence that the dog is "known to growl, snap, or bare his teeth." Collier v. Zambito, 1 NY3d 444, 447 [2004]. Keeping a dog enclosed or chained, or the fact that a dog barks at people who enter a property or one's home, are insufficient to raise a triable issue of fact as to whether it had vicious propensities. Id., at 445, 447. "Indeed,...barking and running around...are consistent with normal canine behavior. Barking and running around are what dogs do." Id., at 447.

The deposition testimony of Bauerfiend and Roemer indicates they never had any aggression problems with Blue before September 11, 2011, that would have suggested or led them to believe the dog had vicious or ferocious tendencies. Although they testified that Blue would bark if someone was wearing a hat or hood, there is no evidence that Blue ever attacked, bit, lunged at, growled, snarled, or bared his teeth at anyone wearing a hat or hood. There is [*4]

no evidence that Baum knew or was advised that Blue barked at hats and hoods. There is no evidence in the record indicating Bauerfiend and Roemer ever informed Baum that Blue was a trained watch/guard dog, had vicious or ferocious propensities, or had ever bitten or attacked anyone. In fact, all of the deposition testimony by Bauerfiend and Roemer and both plaintiffs, indicates quite the opposite—that Blue was not a watch or guard dog, that he was a house pet, and that he was an active, friendly large puppy, who other than barking on occasion, never displayed any aggressive or dangerous tendencies. Although Reichenbaugh testified at deposition that Bauerfiend's and Roemer's five year old daughter told Plaintiff that Blue bit her on the back of her leg and allegedly showed her a scab,^[FN3] both Bauerfiend and Roemer testified they had no knowledge that the dog bit their five year old daughter and they believed the girl would have reported such an incident to them had one occurred. Moreover, the plaintiffs offered no corroborating testimony or evidence to support this alleged hearsay statement of a five year old child, which would be inadmissible at trial. "Hearsay evidence that is inadmissible at trial is insufficient to defeat a motion for summary judgment, unless accompanied by some additional competent evidence," none of which was offered in opposition to this motion. Craft v. Whittmarsh, supra, at 1273. Regardless, even if the five year old child made such a statement and showed Plaintiff a scab on her leg, the plaintiffs have offered no evidence that they, or anyone else, informed Baum of such an incident prior to the September 11, 2011, incident, or that Baum should or would have otherwise known of such an incident.

Baum was approximately 87 years of age when the incident occurred. Baum's deposition testimony indicates he had no idea what type of breed of dog Bauerfiend and Roemer had. He testified that he knew it was a pet. He indicated he had visited the property, doing a drive-by inspection from a vehicle, on approximately five occasions while Bauerfiend and Roemer rented the premises and prior to September 11, 2011. He entered the house on only one occasion that he could recall and testified that he did not see a dog during that inspection, but that he did see a dog that he could not describe, in an outdoor kennel in the backyard on occasion when he drove by. He testified that he had no knowledge of the dog ever biting anyone prior to the September 11, 2011, incident. He also testified that had he known Blue was allegedly part pit-bull, he likely would not have permitted Bauerfiend and Roemer to keep the dog on the premises.

In addition, nowhere in any of the deposition testimony, the complaint, or other submissions is there an indication that Plaintiff or her father communicated information to Baum about Blue before September 11, 2011. Plaintiff, herself, testified at her deposition that she did not meet Baum until after September 11, 2011.

Therefore, based on the record before this Court, the Court finds that Baum had no actual or constructive notice of any vicious or ferocious propensities of Blue, and was not in sufficient control of the leased premises to control or remove the dog. The plaintiffs have failed to provide sufficient evidence to raise triable issues of fact to defeat Baum's motion for summary judgment [*5]and therefore, Baum's motion is granted in its entirety, and the action against him dismissed with prejudice.

Based on the foregoing, it is

ORDERED that Defendant, Arnold Baum's, motion for summary judgment pursuant to CPLR §3212 dismissing the complaint against him is granted in its entirety, with prejudice.

This Memorandum shall constitute both the Decision and Order of the Court. The original of this Decision and Order and all other papers are delivered to the Sullivan County Clerk for entry. Counsel is not relieved from the applicable provisions of CPLR 2220 respecting filing, entry and Notice of Entry.

Dated:November 12, 2013

Monticello, New York

__________________________________________ Hon. Frank J. LaBudaActing Justice Supreme Court

Reply Affirmation of Motion for Summary Judgment with Exhibits, by Frances S. Clemente, Esq., dated August 6, 2013