| Scoyni v Chabowski |
| 2010 NY Slip Op 03104 [72 AD3d 792] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Ashley Scoyni et al., Respondents, v Joanna Chabowski etal., Appellants. |
—[*1] Schoen & Strassman, LLP, Huntington, N.Y. (Joseph B. Strassman of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Cozzens, Jr., J.), dated June 25, 2009, which denied theirmotion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause ofaction.
Ordered that the order is affirmed, with costs.
The infant plaintiff allegedly sustained personal injuries when she was bitten by a dogowned by the defendants, Joanna Chabowski and Tom Chabowski. The defendants movedpursuant to CPLR 3211 (a) (7) to dismiss the complaint, alleging that there was no evidence thatthey 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 aliberal construction (see CPLR 3026; Natural Organics, Inc. v Smith, 38 AD3d 628 [2007]). The factspleaded are presumed to be true and are to be accorded every favorable inference (seeRovello v Orofino Realty Co., 40 NY2d 633 [1976]). The court is to determine only whetherthe 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 AD3d 34, 38 [2006]; see Sheroff v Dreyfus Corp., 50 AD3d877 [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 ofaction, not whether the [proponent] has stated one" (Steve Elliot, LLC v Teplitsky, 59 AD3d 523, 524 [2009]; see Peter F. Gaito Architecture, LLC vSimone Dev. Corp., 46 AD3d 530 [2007]).
Here, the issue of whether the defendants' " 'dog had vicious propensities and that the ownerof the dog, or person in control of the premises where the dog was, knew or should have knownof such propensities' " (Christian vPetco Animal Supplies Stores, Inc., 54 AD3d 707, 707-708 [2008], quoting Claps v Animal Haven, Inc., 34 AD3d715, 716 [2006]; see Bernstein vPenny Whistle Toys, Inc., 10 NY3d 787, 788 [2008]; Feit v Wehrli, 67 AD3d 729[2009]; Varvaro v Belcher, 65AD3d 1225 [2009]; Palumbo vNikirk, 59 AD3d 691 [2009]) cannot be determined as a matter of law based upon theevidentiary materials submitted by [*2]both parties (see Lucia v Goldman, 68 AD3d1064 [2009]; InternationalShoppes, Inc. v Spencer, 34 AD3d 429 [2006]; Klein v Gutman, 12 AD3d 417 [2004]). Although the cause ofaction was delineated as one alleging negligence, and the Supreme Court sustained the complaintas one sounding in negligence, the allegations contained in the complaint, albeit inartfullypleaded, 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 NY2d 633 [1976]). Skelos, J.P., Santucci,Angiolillo and Chambers, JJ., concur.