Campbell v Brosnan

Supreme Court, Kings County

Decided on July 6, 2026

Index No. 515349/2018

Aaron D. Maslow, J.

Papers efiled on NYSCEF used on this motion

Submitted by Defendant Benjamin Brosnan, Jr.: notice of motion, affirmation in support of motion, Plaintiff Xavier P. Campbell's deposition transcript, Defendant Benjamin Brosnan, Jr.'s deposition transcript, memorandum of law in support of motion, affirmation in reply (NYSCEF Doc Nos. 101-105, 112).

Submitted by Plaintiff: complaint, affirmation in opposition, bill of particulars (NYSCEF Doc Nos. 1, 109-111).

Upon the foregoing papers, having heard oral argument^FN1, and due deliberation having been had, the within motion of Defendant Benjamin Brosnan, Jr. seeking summary judgment dismissing the complaint is determined as follows.

Background

Xavier P. Campbell ("Plaintiff") commenced this action seeking damages for injuries sustained from an alleged dog bite that occurred at 552 54th Street, Brooklyn, NY 11220 ("the Property") (see NY St Cts Elec Filing [NYSCEF] Doc No. 102 ¶ 2). On April 16, 2016, Plaintiff was in Rosa Millan's apartment on the third floor of the Property when a dog named "Night," who was initially curled up on the bed, jumped up and attacked him (see id. ¶ 6). This attack allegedly resulted in multiple sutures and permanent scarring on both his face and arm (see NYSCEF Doc No. 109 ¶ 6; see generally NYSCEF Doc No. 1).

On that date, the Property was owned and operated by Benjamin Brosnan, Jr. ("Defendant Brosnan"), a defendant, and Ms. Millan was a tenant on the third floor (see id. ¶ 8). Plaintiff claimed that the dog was always loose on the premises and that Ms. Millan told him that the dog belonged to Defendant Brosnan (see id. ¶¶ 7-10). Additionally, Plaintiff attested that he heard Defendant Brosnan call the dog downstairs to his residence on several occasions, yelling "Night, Night, Night, Night, Night," and that he believed the dog was downstairs with Defendant Brosnan before the attack (id. ¶¶ 9, 11). Plaintiff also stated that on one occasion the dog ran between his legs, almost causing him to fall, and at that time Defendant Brosnan him to "be careful with the dog because the dog is nasty" (id. ¶ 8). Finally, Plaintiff claims he believed that Defendant Brosnan did not keep the dog in the yard because one time it was left outside and ate the neighbor's chickens, and that he had heard from Ms. Millan that "Benny's dog" had bit someone prior to the attack (id. ¶ 10; see id. ¶ 11).

By contrast, Defendant Brosnan claims he has never owned a dog nor taken care of the dog that attacked Plaintiff (See NYSCEF Doc No. 102 ¶ 9). Defendant Brosnan stated he was aware at the time of the attack that there was a dog present in Ms. Millan's apartment, and he assumed it was her dog since he always saw them together (see NYSCEF Doc No. 104 at 14, line 25, through 15, line 5). Although he acknowledged that the dog barked a lot, he also claimed he had never seen the dog attack anyone or act aggressively toward people in the building (see NYSCEF Doc 102 ¶ 9). Additionally, Defendant Brosnan asserted that he never had any conversations with Ms. Millan about whether her dog ever bit anyone or acted aggressively prior to the 2016 attack (see NYSCEF Doc No. 102 ¶ 9).

Movant's Contentions

Defendant Brosnan now seeks summary judgment, alleging that since he did not know, nor should have known, that the dog that attacked Plaintiff had vicious propensities, there is no [*2]viable cause of action to hold him strictly liable (see NYSCEF Doc No. 105 at 4). Defendant Brosnan relies on Collier v. Zambito (1 NY3d 444 [2004]) and claims that prior to the accident he never observed the dog act aggressively or lunge at anyone, and he was not aware of any previous times the dog had attacked someone. Defendant Brosnan also argues that since Plaintiff's evidence of Defendant Brosnan's knowledge of the dog's vicious propensity is solely based on hearsay statements from Ms. Millan, they are inadmissible and do not create an issue of material fact that bars summary judgment (see NYSCEF Doc No. 112 ¶ 6, citing Roche v Bryant, 81 AD3d 707 [2d Dept 2011]).

Opposition

In opposition, Plaintiff alleges that there remain triable issues of material fact as to whether Defendant Brosnan was the owner of the dog and had notice and was aware of the dog's vicious propensities in order to satisfy a claim under strict liability (see NYSCEF Doc No. 109 ¶ 5). Plaintiff claims that his testimony directly conflicted with Defendant Brosnan's testimony as to who owned the dog, creating a triable issue of material fact which would bar Defendant Brosnan from obtaining summary judgment as a matter of law (see id. ¶¶ 15, 20, citing Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010]). Additionally, Plaintiff claims his testimony that Defendant Brosnan said the dog was "nasty and mean," Plaintiff's knowledge of the dog's prior attacks, and the severity of the attack on Plaintiff all create a question of fact as to whether Defendant should have known that the dog had vicious propensities (see id. ¶¶ 16-23, citing Collier, 1 NY3d 444; I. A. v Mejia, 174 AD3d 770, 771 [2d Dept 2019]). Finally, Plaintiff refutes Defendant Brosnan's claim that Ms. Millan's statements of the dog's prior attack and Defendant Brosnan's ownership of the dog are inadmissible when considering a motion for summary judgment, arguing instead that these statements may be considered in conjunction with the other evidence presented by Plaintiff (see id. at 7, citing Seybolt v Wheeler, 42 AD3d 643 [3d Dept 2007]).

Discussion

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied (see Rotuba [*3]Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (see Bazdaric v Almah Partners LLC, 41 NY3d 310, 314 [2024]).

In Flanders v Goodfellow (44 NY3d 57 [2025]), the Court of Appeals held that there is a "two-pronged approach to liability for harms caused by animals," meaning that the injured plaintiff may pursue either a strict liability claim against the animal's owner or a claim based on ordinary negligence principles, or both (see id. at 72). This was a landmark decision because the Court of Appeals overruled its prior precedents which limited a plaintiff's potential recovery to a strict liability cause of action. The Court changed the law in New York to also permit recovery based on negligence. Flanders v Goodfellow was decided within the context of an owner's potential liability for injuries caused by his dog. The instant case involves the potential liability of a defendant asserted to be the owner of the dog, but also presents a situation where even if he is not the owner, there is potential liability as a landlord.

To establish a strict liability claim, the injured plaintiff must show that the owner knew or should have known that the animal had "vicious propensities" (see Collier, 1 NY3d at 446 [2004]).

In addition to pursuing a claim against the owner of a domestic animal for injuries sustained in an attack, an injured plaintiff may also seek recovery against a landlord of the premises that the animal's owner resides in (see Sarno v Kelly, 78 AD3d 1157 [2d Dept 2010]). Although Flanders does not address the issue of landlord liability, the Second Department and the Court of Appeals have consistently held that an injured plaintiff can pursue either a strict liability claim or a claim based on the rules of ordinary negligence against a landlord (see Strunk v Zoltanski, 62 NY2d 572, 576 [1984]; Sarno, 78 AD3d 1157). "To recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate 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 Sarno, 78 AD3d at 1157). An injured plaintiff may also choose to show that a landlord failed in their duty of reasonable care to protect third parties on their property from "an unreasonable risk of harm." (Strunk, 62 NY2d at 576; see Chimento v Mangieri, 237 AD3d 1038 [2d Dept 2025]).

Furthermore, courts have held that evidence pointing to a dog's vicious propensities can include similar prior attacks by the dog, the growling or snapping of its teeth, whether the owner chose to restrain the dog, and whether the owner chose to keep it as a guard dog (see Collier, 1 NY3d at 447). "The nature of the attack," particularly whether it was "plainly unprovoked and quite severe," can also point to an animal having vicious propensities (Wilson v Livingston, 305 AD2d 585, 586 [2d Dept 2003], quoting Brophy v Columbia County Agric. Socy., 116 AD2d 873, 874 [3d Dept 1986]; see I. A., 174 AD3d at 771). By contrast, courts have also held that behavior such as "barking and running around," and other normal canine activities are not enough evidence to establish that a dog has vicious propensities (see Collier, 1 NY3d at 447).

Any evidence submitted by Plaintiff concerning acts of vicious propensities by the dog [*4]that he did not witness is hearsay, which can be considered in opposition to a motion for summary judgment but is insufficient to bar summary judgment if it is the only evidence submitted (see Roche, 81 AD3d at 708 [2d Dept 2011], citing Stock v Otis El. Co., 52 AD3d 816, 817 [2d Dept 2008]).

Here, Defendant Brosnan has failed in his burden to prove that there is no issue of material fact that he is not the owner of the dog, and that he did not know, nor should have known, that the dog had vicious propensities under the theory of strict liability (see CPLR 3212; Sarno, 78 AD3d at 1157). First, the testimony of Plaintiff was that he heard Defendant Brosnan call the dog by his name down to his apartment, and that the dog was with Defendant Brosnan before the attack, points to a potential claim of ownership (see NYSCEF Doc No. 109 ¶¶ 9, 11). When combined with Plaintiff's claims that the dog was always loose on the premises, and that Defendant Brosnan did not let the dog in the yard because it had eaten the neighbor's chickens (see id. ¶¶ 8, 11), it is clear that there remains a question of material fact as to whether Defendant Brosnan, Ms. Millan, or some other individual owned the dog at the time of the attack.

Furthermore, there remain questions of material fact as to whether Defendant Brosnan, as a landlord of the Property, knew or should have known that the dog, "Night," had vicious propensities under the theory of strict liability (see Sarno, 78 AD3d at 1157). Specifically, Defendant Brosnan allegedly told Plaintiff, after Night nearly knocked him over, that the "dog is nasty," and that he should "be careful" around it (NYSCEF Doc No. 109 ¶ 8). Plaintiff also claims that the dog had previously eaten the neighbor's chickens, and as a result was not left in the yard, and that Ms. Millan had told him that that the dog had previously attacked someone (see id. ¶ 10-11). While on its own, Ms. Millan's statement to Plaintiff about the dog's prior attack is inadmissible hearsay, it may be considered in opposition to a motion for summary judgment in conjunction with the other evidence presented by him (see Roche, 81 AD3d at 708). Accordingly, these observations and knowledge of possible prior attacks, comments by Defendant Brosnan about the dog's behavior, and the severity of the attack on Plaintiff, all point to the conclusion that it is possible that Defendant Brosnan knew or should have known that the dog, Night, had vicious propensities (see Collier, 1 NY3d at 447; Wilson, 305 AD2d at 586). Therefore, since Plaintiff has made a choice to pursue a claim of strict liability against Defendant Brosnan, and there remains a question of material fact as to whether Defendant Brosnan knew or should have known of the dog's vicious propensities, the latter has failed to meet his burden of entitlement to judgment as a matter of law as a landlord (see Sarno, 78 AD3d at 1157; CPLR 3212).

Moreover, inasmuch as Flanders v Goodfellow (44 NY3d 57) opened the door to liability in dog-bite cases on the basis of simple negligence, Defendant Brosnan is potentially liable, as either the dog's owner or as the landlord of the Premises under that theory too. In reviewing the complaint, the Court discerns a negligence cause of action in addition to a strict liability one (see NYSCEF Doc No. 1; Miller v Wamp, 239 AD3d 1391, 1392 [4th Dept 2025]).

Conclusion

Accordingly, since there remain questions of material fact as to the ownership of the dog [*5]and whether Defendant Brosnan, as the landlord of the Property, knew or should have known that the dog had vicious propensities, and there remain issues of fact with respect to whether Defendant Brosnan was negligent in terms of either owning the dog or in permitting it to remain on the Premises, he has failed to show entitlement to summary judgment as a matter of law.

It is hereby ORDERED that Benjamin Brosnan Jr.'s motion for summary judgment is DENIED.