Shaw v. Burgess

Peters, J.

(concurring in part and dissenting in part). While I concur in the majority’s position that plaintiff failed to demonstrate both that the animals had vicious propensities and that “the owner knew of such propensities ‘or that they existed for such a period of time that a reasonably prudent person would have discovered them’ ” (Tessiero v Conrad, 186 AD2d 330, 330 [1992], quoting Appel v Charles Heinsohn, Inc., 91 AD2d 1029, 1030 [1983], affd 59 NY2d 741 [1983]), I believe that, under the particular fact pattern here presented, the negligence cause of action must be reinstated* (see Marcial v Maldonado, 288 AD2d 357, 358 [2001]; Goldberg v LoRusso, 288 AD2d 257, 259 [2001]; Lydon v Reviaska, 284 AD2d 508, 509 [2001]; Silva v Micelli, 178 AD2d 521, 522 [1991]; see generally McKee v J&J Otsego Props., 277 AD2d 787, 788 [2000], lv denied 96 NY2d 705 [2001]).

Having been advised both orally and in writing by their realtor that the dogs should be tethered each time that their home was shown to a potential buyer, I believe that defendants had a duty to keep the premises in a reasonably safe condition for those potential buyers whose presence thereupon — solely upon appointment — was reasonably foreseeable (see Goldberg v LoRusso, supra at 259; St. Germain v Dutchess County Agrie. Socy., 274 AD2d 146, 150 [2000]; Schwartz v Erpf Estate, 255 AD2d 35, 39 [1999], lv dismissed 94 NY2d 796 [1999]). Therefore, I believe that a question of fact remains as to whether defendants’ failure to properly restrain their dogs after due warning was a breach of that duty (see Goldberg v LoRusso, supra at 259).

Ordered that the order is affirmed, with costs.

Defendants failed to even address such cause of action in their motion for summary judgment.