FIGUEROA v. ALEX AUTO PARTS CARS INC (2000)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 5, 1999, which, in an action for personal injuries sustained in an attack by a dog, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's deposition testimony that at times prior to the attack he had seen the dog, a pit bull, tied up in defendants' yard with “a steel thick chain” and that he feared the dog is insufficient to raise an issue of fact as to the dog's known vicious propensities (see, Joe v. Orbit Indus., 269 A.D.2d 121, 122, 703 N.Y.S.2d 14;  cf., Moriano v. Schmidt, 133 A.D.2d 72, 518 N.Y.S.2d 416).   Plaintiff's additional hearsay testimony that a woman from the neighborhood told him of a similar, albeit less serious, attack was not clearly linked to the same dog and did not indicate that defendants knew of the incident.   Nor did such hearsay indicate when the attack on the woman occurred, creating the possibility that it occurred after the attack on plaintiff, rendering it meaningless insofar as providing notice of the dog's vicious propensities.

MEMORANDUM DECISION.