Georgianna v. Gizzy
| Decision Date | 23 November 1984 |
| Citation | 483 N.Y.S.2d 892,126 Misc.2d 766 |
| Parties | Mary Ann GEORGIANNA, Individually and on behalf of Infant Son, Richard Neuser, Plaintiff, v. Sady GIZZY and Vincent Cuss and Irving and Virginia Quinn, Defendants. |
| Court | New York Supreme Court |
Plaintiff's minor son was bitten by a dog owned by defendant Gizzy, on premises leased to Gizzy by defendants Quinn. The Quinns move for summary judgment contending that as absentee landlords, they are not liable for the actions of their tenant's dog.
Generally, a landlord not in possession of the premises is not liable for injuries inflicted by a tenant's dog. However, he may become liable if he has (1) actual knowledge of the animal's vicious propensities and (2) has retained substantial control over the premises. Zwinge v. Love, 37 A.D.2d 874, 325 N.Y.S.2d 107.
Since there is a dispute over the issue of control of the premises, it may not be decided by summary judgment. The issue which must be addressed by the court is that of actual knowledge "of the vicious propensities". There is no dispute from the affidavits--the Quinns had no actual knowledge. Plaintiff argues that they had "constructive notice", and it is the same thing and meets the Zwinge v. Love requirements.
Plaintiff offers evidence that the dog had previously bitten someone, and that a report of the incident was filed with the Town of Salina and the Onondaga County Department of Health. Plaintiff contends that this filed report constitutes constructive notice of the animal's vicious propensities. He citesStrunk v. Zoltanski, 96 A.D.2d 1074, 466 N.Y.S.2d 716, affd. 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13, as authority. It is not. In that case, the landlord retained no control over the demised premises. However, he had actual knowledge of the dog's vicious nature not only prior to the incident, but prior to letting the premises.
The court held that the prior knowledge imposed a burden upon the landlord to refuse to lease or accept the consequences. Thus, a landlord who leases to a tenant knowing the tenant is an owner of a potentially dangerous dog, will be responsible for any damage caused to a third party by the dog.
On the other hand, the issue of constructive notice and its effect on the actual notice requirement in the Zwinge v. Love case should be resolved.
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