Payne v. Pavese
| Decision Date | 15 December 1983 |
| Citation | 98 A.D.2d 879,470 N.Y.S.2d 860 |
| Parties | Everett PAYNE, Respondent, v. Anthony PAVESE et al., Defendants, and Martin Milano, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John J. Quackenbush, Jr., Newburgh (Martin M. McGlynn of counsel), for appellant.
Gurda, Gurda & McBride, Middletown (Grant W. Kelleher, Middletown, of counsel), for respondent.
Rider, Drake, Summers & Loeb, P.C., Newburgh (Richard F. Liberth, Newburgh, of counsel), for defendant Paul Quimby d/b/a Farmer's Produce Auction.
Before SWEENEY, J.P., and KANE, CASEY, MIKOLL and WEISS, JJ.
Appeal from that part of an order of the Supreme Court at Special Term, entered December 27, 1982 in Ulster County, which denied defendant Martin Milano's motion for summary judgment dismissing the complaint.
Plaintiff was bitten by a dog on September 14, 1981 while on Paul Quimby's property. He sued Lola and Anthony Pavese, the owners of the dog; William and Martin Milano, the owners of the land on which the dog was kept and where Anthony Pavese conducted a welding business; and Paul Quimby, the owner of the land on which the dog bite occurred and the operator of the Farmer's Produce Auction located thereon. The Milanos sought summary judgment dismissing the complaint pursuant to CPLR 3212. In the moving papers, William Milano denied ownership of the land leased by Pavese while Martin Milano admitted ownership but sought dismissal for failure to state a cause of action against him. The court granted William Milano's motion and denied that of Martin Milano. This appeal by Martin Milano ensued.
Plaintiff's complaint seeks recovery from Martin Milano on the ground that he allowed the Pavese dog to remain on the premises owned by him with prior knowledge of the vicious propensities of the animal and that he failed to see that the animal was properly restrained and muzzled.
Martin Milano, in seeking dismissal of the complaint, stated in his affidavit that he leased his property to Anthony Pavese; that he did not reside there; that he never exercised control over the Pavese dog; and that he was unaware of the animal's presence on the property. Plaintiff has submitted in response the affidavit of his counsel which fails to set out any facts which would make Martin Milano responsible for plaintiff's injuries as landlord of the leased premises (see Strunk v. Zoltanski, 96 A.D.2d 1074, 466 N.Y.S.2d 716).
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...who had never exercised control over the tenant's dog and was unaware of the animal's presence on the property. Payne v. Pavese, 98 A.D.2d 879, 470 N.Y.S.2d 860 (1983). In Georgianna v. Gizzy, 126 Misc.2d 766, 483 N.Y.S.2d 892 (1984), the court held that summary judgment was proper where th......
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Clauson v. Kempffer
...lease, or where the landlord retained substantial control over the leased premises when he learned of the activity. Payne v. Pavese, 98 A.D.2d 879, 470 N.Y.S.2d 860 (1983); Georgianna v. Gizzy, 126 Misc.2d 766, 483 N.Y.S.2d 892 (N.Y.Sup.Ct.1984). Other jurisdictions have similarly restricte......
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