Delcid v 301 Buel Ave., LLC

Supreme Court, Richmond County

Decided on July 13, 2026

Index No. 152622/2025

Paul Marrone, Jr., J.

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:

Papers NYSCEF Document(s)

Defendants' Motion to Dismiss (Motion #1), with supporting documents (filed March 31, 2026) 7 — 14

Plaintiff's Cross-Motion to Amend the Summons and Complaint (Motion #2) and Opposition [*2]to Defendants' Motion (Motion #1), with supporting documents (filed April 16, 2026) 19 — 25

Defendants' Opposition to Plaintiff's Cross-Motion (Motion #2) and Reply to Plaintiff's Opposition (Motion #1), with supporting documents (filed April 22, 2026) 27 — 30

Upon the foregoing papers, the defendants, 301 Buel Avenue, LLC ("Defendant 301 Buel Avenue, LLC") and Kiranpreet Parmar ("Defendant Parmar") (hereinafter collectively, "Defendants"), move (Motion #1) for an order dismissing the Complaint in its entirety pursuant to CPLR 3211 (a) (1) and (7), and dismissing all claims against Defendant Parmar, individually, pursuant to Limited Liability Company Law § 609 (a). The plaintiff, Reynaldo Delcid ("Plaintiff"), opposes the motion and cross-moves (Motion #2) for an order, pursuant to CPLR 3025, for leave to amend the Summons and Complaint to clarify the location of the alleged incident and to add defendants.

PROCEDURAL HISTORY

This action commenced by the filing of a summons and verified complaint on October 28, 2025. Prior to interposing an answer, Defendants moved (Motion #1), on March 31, 2026, to dismiss the Verified Complaint. Plaintiff filed opposition to Defendants' motion and cross moved (Motion #2), on April 16, 2026, to amend the pleadings. Defendants thereafter filed opposition to Plaintiff's cross motion, and a reply to Plaintiff's opposition, on April 22, 2026. Plaintiff waived his right to reply to Defendants' opposition papers.

Oral argument was heard on May 14, 2026, with both parties represented by counsel, after which the motion and cross motion were marked fully submitted. The Court's decisions were reserved.

FACTUAL BACKGROUND

Defendant Parmar is the managing member of Defendant 301 Buel Avenue, LLC which owns the premises located at 301 Buel Avenue in Staten Island (hereinafter "the Property").

According to the Complaint, Plaintiff was attacked by a dog on July 10, 2025 while delivering a package to the Property. Plaintiff alleges that the dog was a guard dog and/or a dog with vicious propensities owned, possessed, controlled, and/or harbored by Defendants. Plaintiff claims that he suffered severe and permanent injuries as a result of the attack.

Plaintiff further alleges that Defendants had actual and/or constructive knowledge of the vicious disposition of the dog, and were strictly liable and/or negligent, reckless and careless in their ownership, possession, control, care, and/or harboring of the dog.

STANDARD OF REVIEW

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court affords the complaint a liberal construction, accepts the facts alleged as true, and accords the plaintiff the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83, 87—88 [1994]). The court's role is only to determine, from the four corners of the pleading and any affidavits submitted in opposition, whether those facts, taken together, manifest any cause of action cognizable at law (see [*3]Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 634 [1976]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

A court is permitted to consider evidentiary material submitted by a defendant in support of a motion under CPLR 3211 (a) (7) and, where such material is considered, the criterion becomes whether the plaintiff has a cause of action, not whether he or she has stated one (Guggenheimer, 43 NY2d at 275; Scoyni v Chabowski, 72 AD3d 792 [2d Dept 2010]). Affidavits submitted by a moving defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action (Matter of Lawrence v Miller, 11 NY3d 588, 595 [2008], citing Rovello, 40 NY2d at 636). Thus, a motion to dismiss pursuant to CPLR 3211 (a) (7) must be denied unless it has been shown that a material fact as claimed by the plaintiff is not a fact at all, and unless it can be said that no significant dispute exists regarding it (Sokol v Leader, 74 AD3d 1180, 1182 [2d Dept 2010], citing Guggenheimer, 43 NY2d at 275).

Conversely, affidavits submitted by a plaintiff may be received to supplement and amplify the pleadings and to preserve potentially meritorious, but inartfully pleaded, claims (Rovello, 40 NY2d at 635-636). Such affidavits are not examined for the purpose of determining whether there is evidentiary support for the pleading, and a plaintiff will not be penalized for failing to make an evidentiary showing at this stage unless the motion is converted to one for summary judgment (see id.; Sokol, 74 AD3d at 1181).

Dismissal under CPLR 3211 (a) (1) is warranted only where documentary evidence utterly refutes the plaintiff's factual allegations and conclusively establishes a defense as a matter of law (Goshen v Mut. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]). To qualify as "documentary", evidence must be unambiguous such as judicial records and documents reflecting out-of-court transactions, including mortgages, deeds, contracts, and any other papers the contents of which are "essentially undeniable" (see Fontanetta v Doe, 73 AD3d 78, 84-87 [2d Dept 2010]).

DISCUSSION

Until recently, the sole means of recovery for injuries caused by a domestic animal was to establish that the animal had vicious propensities and that the owner knew or should have known of them (see Bard v Jahnke, 6 NY3d 592, 599 [2006]). Where the defendant is a landlord, rather than the animal's owner, that theory additionally requires notice that an animal was being harbored on the premises, and sufficient control to remove or confine it (see Strunk v Zoltanski, 62 NY2d 572, 575—576 [1984]; Brooks v Adell, 211 AD3d 792 [2d Dept 2022]).

Last year, the Court of Appeals overruled the exclusivity of that framework, holding that a plaintiff may now proceed on strict liability, ordinary negligence, or both theories in the same action (see Flanders v Goodfellow, 44 NY3d 57 [2025]). Under the negligence theory, proof of vicious propensities is not required, and a plaintiff instead must show that the defendant failed to exercise due care under the circumstances that caused their injury (see id. at 72). Applied to a landlord, Plaintiff may therefore establish liability either by satisfying the strict liability elements above, or by showing Defendants failed to act as a reasonably prudent landlord would have under the circumstances, regardless of whether vicious propensities are separately established (id.).

Defendants' Motion to Dismiss Pursuant to 3211 (a) (7)

Defendants argue that the Complaint fails to state any cognizable cause of action against them. They contend that Plaintiff affirmatively alleges that he was attacked and bitten by a dog while delivering a package to "310 Buel Avenue", not at "301 Buel Avenue", and that neither defendant owns, manages, or has any connection to 310 Buel Avenue. In Defendants' view, this is not a typographical error but a binding judicial admission that the alleged attack occurred at a property with no nexus to these Defendants, foreclosing any dog bite claim against them.

Defendants further argue that, even if the address were corrected, the Complaint would still fail to state a cause of action because it does not allege that Defendants had notice of a dog on the premises, knowledge of any vicious propensities, or sufficient control to remove or confine the animal.

According to Defendants, the Property is an investment property consisting of two rental units, with the ground floor unit occupied by a tenant and day to day management handled by a property manager. In his affidavit, Defendant Parmar claims that he is an out of possession landlord who has never brought a dog to the premises and has never received any complaint or report of a dog or other domestic animal being kept there. Defendants further argue that Plaintiff's pleadings do not set forth a cognizable claim because Plaintiff fails to identify or describe the dog at all or to allege any facts connecting the dog to the Property.

In opposition, Plaintiff argues that the Complaint and proposed Amended Complaint, supplemented by his affidavit and photographs, sufficiently state causes of action sounding in strict liability and negligence against Defendants. In his affidavit, Plaintiff claims that a black guard dog emerged from the Property, crossed the street, and attacked him while he was delivering a package to 310 Buel Avenue. Plaintiff also alleges a prior incident in which the same dog attempted to attack him.

To support his opposition, Plaintiff submits photographs depicting a dog on the stoop of the Property and a "Beware of Dog" sign at the Property. Plaintiff argues that these materials demonstrate that a dog was being harbored at the Property and that Defendants either knew or should have known of the dog's presence and vicious propensities. According to Plaintiff, accepting these allegations as true and affording him every favorable inference, dismissal under CPLR 3211(a) (7) would be premature at this early stage before depositions and other discovery are conducted.

Upon consideration of the Complaint and Amended Complaint, together with Plaintiff's affidavit and photographs, and applying the pleading standards set forth above, the Court concludes that Plaintiff has stated cognizable causes of action sounding in strict liability and negligence against Defendants. Taken together and afforded every favorable inference, Plaintiff's pleadings, affidavit, and attached exhibits are sufficient at this pre discovery stage to set forth potentially meritorious strict liability and negligence claims (see Leon, 84 NY2d at 87 88). Whether Plaintiff will ultimately be able to prove those claims is not part of the Court's analysis here (see EBC I, 5 NY3d at 19).

The Court rejects Defendants' contention that the reference to 310 Buel Avenue in the original Complaint constitutes a binding judicial admission that forecloses any claim against these Defendants. Plaintiff's sworn opposition clarifies that 310 Buel Avenue is directly across the street from the Property, and that the dog at issue allegedly emerged from the Property and crossed the street to attack him there. Under the liberal pleading rules, this address issue does not render the dog-bite claims non-cognizable as a matter of law, particularly where, as here, Plaintiff's inartfully pleaded allegations, taken together with his affidavit and exhibits, are sufficient to state potentially meritorious causes of action (Rovello, 40 NY2d at 636).

Nor does the Court accept Defendants' argument that Plaintiff's claims fail because he has not yet conclusively identified the dog's owner, provided a detailed description of the dog, or produced documentary proof of ownership or harboring. At this pre-discovery stage, Plaintiff is not required to marshal the evidentiary showing necessary to defeat summary judgment, and he will not be penalized for the absence of such proof (see Sokol, 74 AD3d at 1181). Defendants' affidavit denying knowledge of any dog on the Property and asserting that neither the owner nor the property manager ever received a complaint does not establish that Plaintiff's core factual allegation is not a fact at all, or that no significant dispute exists regarding it (see id. at 1181).

With respect to strict liability in the landlord context, the Court finds that Plaintiff adequately alleges that a dog was being harbored at the Property, that Defendants knew or should have known of its presence, and alleged vicious propensities based on the prior incident and posted "Beware of Dog" sign, and that Defendant Parmar, as landlord and managing member of the owner entity, had sufficient control over the premises to take measures to remove or confine the animal. Those allegations, while subject to proof, are enough at the pleading stage to state a potentially meritorious strict liability claim, and whether they will ultimately raise a triable issue of fact is a question for summary judgment, not this pre answer motion (see Edwards v Layman, 79 Misc 3d 1204[A] [Sup Ct, Westchester County 2023]; see also Fasano v Colon, 27 AD3d 691 [2d Dept 2006]). Moreover, Defendants themselves identify a property manager for the Property, and New York law recognizes that an agent's knowledge of a dog's presence and vicious propensities may be imputed to the property owner, underscoring that questions of notice and knowledge cannot be resolved as a matter of law at this pre-discovery stage (see King v Hoffman, 178 AD3d 906, 909 [2d Dept 2019], citing Wilson v Livingston, 305 AD2d 585, 586 [2d Dept 2003]).

Finally, the Court does not adopt Defendants' narrow reading of Flanders. In Flanders, the Court of Appeals reaffirms the strict liability framework while recognizing a parallel negligence route for harm caused by domestic animals, and permits plaintiffs to proceed on both theories simultaneously (see Flanders, 44 NY3d 57 at 72). Nothing in that decision suggests that negligence claims are confined to the animal's owners or categorically exclude landlords alleged to have failed to exercise due care (see id. at 63-72). On this record, Plaintiff's allegations are sufficient to state a negligence cause of action (see id.).

Accordingly, the Court does not find that Plaintiff's strict liability and negligence claims fail as a matter of law, and the branches of Defendants' motion seeking dismissal pursuant to CPLR 3211(a) (7) are denied.

Defendants' Motion to Dismiss Pursuant to 3211(a) (1)

Defendants also move to dismiss pursuant to CPLR 3211(a) (1), arguing that documentary evidence utterly refutes Plaintiff's allegations and conclusively establishes a defense as a matter of law. First, they cite New York City Department of Finance records showing that 310 Buel Avenue is owned by non-party individuals with no affiliation to Defendants and contend that, when combined with Plaintiff's allegation that the attack occurred at 310 Buel Avenue, this confirms the incident took place at a property with no connection to them. Second, they rely on the written lease for the Property, which contains a "no pet" clause, and assert that this provision demonstrates they affirmatively prohibited tenants from keeping animals at the premises, negating any inference that they knew of, authorized, or acquiesced in the presence of a dog. Third, Defendant Parmar submits an affidavit stating that his only dog resides with him in New Jersey and has never been kept at the [*4]Property.

The Court finds that Defendants' documentary evidence arguments do not warrant dismissal pursuant to CPLR 3211(a) (1). Plaintiff has clarified in his affidavit that, although the attack occurred while he was on the sidewalk in front of 310 Buel Avenue, the dog at issue came from the Property, crossed the street, and attacked him there. Therefore, records showing that 310 Buel Avenue is owned by non-parties do not utterly refute Plaintiff's claims and conclusively establish a defense as a matter of law (see Goshen, 98 NY2d at 326).

The Court further finds that the lease's "no pet" clause does not conclusively refute Plaintiff's allegations, and that Plaintiff's affidavit and photographs raise a factual dispute as to whether that prohibition was enforced. Dismissal pursuant to CPLR 3211(a) (1) is therefore denied.

Defendants' Motion to Dismiss Pursuant to Limited Liability Company Law § 609 (a)

Defendants argue that all claims against Defendant Parmar, individually, must be dismissed pursuant to Limited Liability Company Law § 609 (a). They contend that, as a managing member of 301 Buel Avenue, LLC, Defendant Parmar is shielded from personal liability for the LLC's obligations unless Plaintiff pleads grounds to pierce the corporate veil. In Defendants' view, neither the Complaint nor the proposed Amended Complaint alleges facts sufficient to support veil piercing, and Defendant Parmar's status as a managing member, standing alone, cannot subject him to personal liability, so the claims against him individually must be dismissed.

The Court finds that Limited Liability Company Law § 609 (a) does not, at this stage, require dismissal of the claims against Defendant Parmar in his individual capacity. This provision states that neither a member nor a manager of a limited liability company is liable for the company's debts, obligations, or liabilities "whether arising in tort, contract or otherwise, solely by reason of being such member [or] manager." It is well established that a member cannot be held liable for the company's obligations by virtue of that status alone, but the case law also recognizes that corporate and LLC principals may be held personally liable for torts they themselves commit in the performance of their duties (see Gold v 22 St. Felix, LLC, 219 AD3d 588, 591 [2d Dept 2023]; JT Queens Carwash, Inc. v JDW & Assoc., Inc., 144 AD3d 750, 752 [2d Dept 2016]).

Here, Plaintiff does not seek to hold Defendant Parmar liable "solely by reason of" his LLC membership. Rather, Plaintiff alleges that Defendant Parmar personally owned, possessed, or harbored the dog, or negligently failed to address its presence on the Property. Defendants' own exhibits show rent checks payable directly to Defendant Parmar, and this fact, together with his role as sole managing member of the LLC, supports Plaintiff's allegation that he acted personally as landlord over the Property from which the dog allegedly came. Because the claims target Defendant Parmar's own alleged tortious conduct as landlord, and not merely his membership status, they fall within the line of authority permitting personal liability for such torts (see Gold, 219 AD3d at 590-591; JT Queens Carwash, 144 AD3d at 752)

Accordingly, at this pre-discovery stage the Court cannot conclude as a matter of law that Limited Liability Company Law § 609 (a) bars the claims against Defendant Parmar, individually, and the branch of Defendants' motion seeking dismissal of those claims is denied.

Plaintiff's Cross-Motion to Amend the Summons & Complaint

Plaintiff, in support of his cross motion, argues that leave should be granted to amend the Summons and Complaint to clarify that he witnessed the dog at issue come from the Property, cross the street, and attack him while he was delivering a package at 310 Buel Avenue, which he points out is consistent with the contemporaneous police report. Plaintiff further argues that amendment should be permitted to add the lower unit tenant at the Property, the property manager, and a placeholder for any unidentified upstairs tenant, on the ground that those individuals may own, harbor, or otherwise be connected to the dog at issue.

Defendants contend that Plaintiff's original allegation placing the attack at 310 Buel Avenue is a binding judicial admission that cannot be corrected. They further assert that the proposed amendments are palpably insufficient and patently devoid of merit because they confirm the dog would have belonged to a tenant rather than to Defendants. According to Defendants, Plaintiff has not adequately pleaded that Defendants had notice of any dog on the premises, knowledge of vicious propensities, or sufficient control to remove or confine the animal.

CPLR 3025 (b) provides that a party may amend a pleading by leave of court and that such leave "shall be freely given upon such terms as may be just." Courts have consistently held that leave to amend should be freely granted in the absence of prejudice to the opposing party where the amendment is not patently lacking in merit (Davis v S. Nassau Communities Hosp., 26 NY3d 563, 580 [2015]. Furthermore, the burden of demonstrating prejudice or a clear, lack of merit rests with the party opposing the amendment (see Coleman v Worster, 140 AD3d 1002, 1003-1004 [2d Dept 2016]).

Here, Plaintiff's proposed amendments are sufficient and supported by the record, as they conform the pleadings to Plaintiff's affidavit and the contemporaneous account of the incident. Furthermore, the proposed addition of defendants incorporates information that Defendants, themselves, supplied about who manages and occupies the Property. Defendants have not shown any prejudice or surprise arising from these clarifications and additions, particularly where, as here, discovery has not yet commenced (see Coleman, 140 AD3d at 1003). In the exercise of its discretion, the Court therefore grants Plaintiff leave to amend the Summons and Complaint as proposed (see CPLR 3025 [b]; Davis, 26 NY3d at 580).

DECISION AND ORDER

For the foregoing reasons, it is hereby:

ORDERED that Defendants' motion, made pursuant to CPLR 3211 (a) (1) and (a) (7), and Limited Liability Company Law § 609 (a), is DENIED in its entirety; and it is further

ORDERED that Plaintiff's cross motion, made pursuant to CPLR 3025 (b) for leave to amend the Summons and Complaint, is GRANTED, and the proposed Amended Summons and Complaint annexed to the cross motion shall be deemed served and filed upon service of a copy of this Decision and Order with notice of entry; and it is further

ORDERED that any items of relief sought by the motions that are not addressed herein shall be deemed to have been denied.