FRANCIS v. BECKER (2008)

Plaintiff commenced this action seeking damages for injuries she sustained when she was attacked by two dogs owned by defendant David Becker and harbored at the home of defendant Mary Becker.   Supreme Court erred in granting defendants' motion seeking summary judgment dismissing the complaint.   Defendants met their initial burden on the motion by submitting proof that they did not know or have reason to know of the dogs' vicious propensities (see Collier v. Zambito, 1 N.Y.3d 444, 446-447, 775 N.Y.S.2d 205, 807 N.E.2d 254).   In opposition to the motion, however, plaintiff submitted evidence that the dogs were pit bull mixes that were kept, at least in part, to serve as guard dogs (see Loper v. Dennie, 24 A.D.3d 1131, 1132-1133, 807 N.Y.S.2d 672;  Beljean v. Maiuzzo, 256 A.D.2d 533, 683 N.Y.S.2d 104).   That evidence, combined with the evidence of the unprovoked and vicious nature of the attack and the extent and severity of the injuries sustained by plaintiff, is “sufficient to raise triable issues of fact as to whether the dog[s] had vicious propensities and whether the defendants knew or should have known of them” (Beljean, 256 A.D.2d at 534, 683 N.Y.S.2d 104;  see Calabro v. Bennett, 291 A.D.2d 616, 737 N.Y.S.2d 406;  Lynch v. Nacewicz, 126 A.D.2d 708, 709, 511 N.Y.S.2d 121;  cf. Bernstein v. Penny Whistle Toys, Inc., 10 N.Y.3d 787, 856 N.Y.S.2d 532, 886 N.E.2d 154).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

MEMORANDUM: