SCOYNI v. CHABOWSKI

2009-07033

72 A.D.3d 792 (2010)

898 N.Y.S.2d 482

ASHLEY SCOYNI et al., Respondents, v. JOANNA CHABOWSKI et al., Appellants.

Appellate Division of the Supreme Court of New York, Second Department.

Decided April 13, 2010.


Ordered that the order is affirmed, with costs.

The infant plaintiff allegedly sustained personal injuries when she was bitten by a dog owned by the defendants, Joanna Chabowski and Tom Chabowski. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint, alleging that there was no evidence that they had prior actual or constructive knowledge of the vicious propensity of the dog.

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction (see CPLR 3026; Natural Organics, Inc. v Smith, 38 A.D.3d 628 [2007]). The facts pleaded are presumed to be true and are to be accorded every favorable inference (see Rovello v Orofino Realty Co., 40 N.Y.2d 633 [1976]). The court is to determine only whether the facts as alleged state "in some recognizable form any cause of action known to our law" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 [2006]; see Sheroff v Dreyfus Corp., 50 A.D.3d 877 [2008]). Further, "[w]here evidentiary material is [adduced in support of the] motion . . . the court must determine whether the [proponent of the pleading] has a cause of action, not whether the [proponent] has stated one" (Steve Elliot, LLC v Teplitsky, 59 A.D.3d 523, 524 [2009]; see Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 A.D.3d 530 [2007]).

Here, the issue of whether the defendants'" `dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities'" (Christian v Petco Animal Supplies Stores, Inc., 54 A.D.3d 707, 707-708 [2008], quoting Claps v Animal Haven, Inc., 34 A.D.3d 715, 716 [2006]; see Bernstein v Penny Whistle Toys, Inc., 10 N.Y.3d 787, 788 [2008]; Feit v Wehrli, 67 A.D.3d 729 [2009]; Varvaro v Belcher, 65 A.D.3d 1225 [2009]; Palumbo v Nikirk, 59 A.D.3d 691 [2009]) cannot be determined as a matter of law based upon the evidentiary materials submitted by both parties (see Lucia v Goldman, 68 A.D.3d 1064 [2009] International Shoppes, Inc. v Spencer, 34 A.D.3d 429 [2006]; Klein v Gutman, 12 A.D.3d 417 [2004]). Although the cause of action was delineated as one alleging negligence, and the Supreme Court sustained the complaint as one sounding in negligence, the allegations contained in the complaint, albeit inartfully pleaded, taken together with the affidavits submitted in opposition to the defendants' motion, were sufficient to state a potentially meritorious cause of action premised on strict liability (see Rovello v Orofino Realty Co., 40 N.Y.2d 633 [1976]).


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