BERNSTEIN BERNSTEIN v. (And a Third-Party Action.). (2008)

Court of Appeals of New York.

Danielle BERNSTEIN, an Infant, by Her Father and Natural Guardian, Roger BERNSTEIN, et al., Appellants, v. PENNY WHISTLE TOYS, INC., et al., Respondents and Third-Party Plaintiffs. (And a Third-Party Action.).

Decided: March 18, 2008

Rappaport, Glass, Greene & Levine, LLP, New York City, for appellants. Carol R. Finocchio, New York City, Lisa M. Comeau, and Law Offices of John P. Humphreys, for respondents. Hawkins, Feretic, Daly & Maroney, New York City, for third-party defendant-respondent.

OPINION OF THE COURT

The order of the Appellate Division should be affirmed with costs.

We held in Collier v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 (2004) that a plaintiff bitten by a dog could not recover because he was unable to show that the dog's owner knew or should have known of the dog's “vicious propensities.” In Bard v. Jahnke, 6 N.Y.3d 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 (2006), we held that “when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier.”

Since there is no evidence in this case that the dog's owner had any knowledge of its vicious propensities, the Appellate Division was correct in affirming the dismissal of the complaint against defendants. Plaintiff's claims against third-party defendant were also properly dismissed, because there is no evidence that third-party defendant was negligent.

Order affirmed, with costs, in a memorandum.

MEMORANDUM.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

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