Full Case Name:  Radames MERCADO, Plaintiff–Appellant, v. Rafael OVALLE, et al., Defendants–Respondents

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Country of Origin:  United States Court Name:  Supreme Court, Appellate Division, First Department, New York. Primary Citation:  973 N.Y.S.2d 171 (N.Y.A.D. 1 Dept., 2013) Date of Decision:  Tuesday, October 22, 2013 Judge Name:  GONZALEZ, P.J., TOM, SAXE, MANZANET–DANIELS, GISCHE, JJ. Jurisdiction Level:  New York Alternate Citation:  2013 N.Y. Slip Op. 06810, 2013 WL 5712557, 110 A.D.3d 539 Judges:  GONZALEZ JJ. SAXE MANZANET–DANIELS TOM P.J. GISCHE Attorneys:  Powers & Santola, Albany (Michael J. Hutter of counsel), for appellant. Donohue Law Firm, New York (Sara Azarm of counsel), for respondents Docket Num:  06810

In this New York case, plaintiff appealed the lower court's order granting defendants' motion for summary judgment in a dog bite case. Defendants, a grocery store and its owner, asserted that they did not own the two pit bulls that attacked plaintiff. The only evidence plaintiff presented showing defendants' ownership and control over the dogs were hearsay statements from the mechanic who operated the lot that the dogs guarded. The court found this evidence that defendants occasionally walked and fed the dogs insufficient to show that they "harbored" the dogs. Affirmed.

*1 Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered July 17, 2012, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants, a grocery store and its owner, established entitlement to judgment as a matter of law. Defendants demonstrated that they did not own or harbor the two pit bulls that attacked plaintiff and did not own or control the adjacent lot on which the dogs were kept ( see Smith v. City of New York, 68 A.D.3d 445, 446, 889 N.Y.S.2d 187 [1st Dept.2009]; Williams v. City of New York, 306 A.D.2d 203, 206–207, 761 N.Y.S.2d 221 [1st Dept.2003] ).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's only evidence of defendants' ownership and/or control over the dogs and the subject lot consisted of hearsay statements from a mechanic who operated out of the lot which the dogs guarded and his own observations that defendant Ovalle fed the dogs at an unidentified frequency and walked the dogs on one occasion, that men from the grocery store and Ovalle's relatives were involved in the dogs' care, and that men from the grocery store accessed the lot. Such evidence does not establish that defendants harbored the dogs ( cf. Dufour v. Brown, 66 A.D.3d 1217, 888 N.Y.S.2d 219 [3d Dept.2009] ). Moreover, plaintiff had never seen the dogs on defendants' premises and does not claim to have ever seen Ovalle enter the lot. Plaintiff's speculation that Ovalle employed the aforementioned mechanic and had an interest in a nearby auto parts store and that the store was associated with the lot, does not establish that defendants owned or controlled the lot.

Plaintiff's argument that defendants' failure to annex the answer mandates denial of the motion ( see CPLR 3212[b] ) is unpreserved ( see Tranes v. Independent Health Assn., 275 A.D.2d 410, 712 N.Y.S.2d 866 [2d Dept.2000] ). Had plaintiff raised the issue earlier, defendants would have had an opportunity to supplement the record ( see Ayer v. Sky Club, Inc., 70 A.D.2d 863, 418 N.Y.S.2d 57 [1st Dept.1979], appeal dismissed 48 N.Y.2d 705, 422 N.Y.S.2d 68, 397 N.E.2d 758 [1979] ). In any event, this procedural defect does not bar consideration of the motion as defendants explained the absence of the answer and submitted a copy of Ovalle's deposition transcript, wherein he denied the relevant allegations concerning ownership and control of the dogs and lot. Accordingly, the record was sufficiently complete to consider the motion ( see Chan v. Garcia, 24 A.D.3d 197, 198, 806 N.Y.S.2d 23 [1st Dept.2005] ). Furthermore, plaintiff has not established any basis to revive his abandoned negligence claim ( see Bard v. Jahnke, 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006]; compare Hastings v. Sauve, 21 N.Y.3d 122, 967 N.Y.S.2d 658, 989 N.E.2d 940 [2013] ).


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