Rodman v. Fuddruckers, Inc. ( 1997 )

—Order, Supreme Court, New York County (Stuart Cohen, J.), entered August 16, 1996, which granted defendant-appellants’ motion to renew a prior order denying their motion for summary judgment dismissing plaintiffs complaint, and, upon renewal, adhered to the prior order, unanimously affirmed, without costs.

Summary judgment was properly denied, there being an issue of fact as to whether appellants’ use and control of the outdoor dining area extended beyond their portable metal barriers, where plaintiff was attacked by a dog that was tied to a post. The absence of Exhibit B-3 of the lease, which the body of the lease describes as setting forth the portion of the outside patio that appellants had the right to use but which appellants claim does not exist, turns the dimensions of such portion into an issue of fact inappropriate for summary judgment treatment. We have considered appellants’ remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Ellerin and Williams, JJ.