Petrella v. O'Connor 107 A.D.2d 1082

— Order and judgment affirmed, without costs. All concur, except Schnepp, J., who dissents and votes to reverse in the following memorandum.

Schnepp, J.

(dissenting). Defendant admitted at his deposition that the cat’s “particular resting spot” was on the stairs leading up to the rear door of his house and that the cat had a habit of rushing into the house when the door was opened, yet he failed to warn plaintiff of the animal’s behavior. This testimony establishes that triable questions of fact were raised as to whether the cat’s behavior created a source of danger which defendant might reasonably have foreseen, thus giving rise to a duty to warn, the breach of which may have been a proximate cause of plaintiff’s injuries (cf. Basso v Miller, 40 NY2d 233, 241; Steubing v Hooper, 272 App Div 865, affd 297 NY 660). (Appeal from order and judgment of Supreme Court, Erie County, Wolf, J. — summary judgment.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.