GRUBENMANN v. WAGNER (2002)

Supreme Court, Appellate Division, Second Department, New York.

Nicholas GRUBENMANN, etc., et al., Appellants, v. Steven WAGNER, Respondent.

Decided: December 16, 2002

FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ.

Mark Feldman, Garden City, NY, for appellants. Callan, Koster, Brady & Brennan, LLP, Uniondale, N.Y. (Vincent D. Finnegan of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Burke, J.), dated November 14, 2001, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Where, as here, the plaintiffs seek to recover in strict liability in tort for a dog bite, they must prove that the dog has vicious propensities and that the owner knew or should have known of such propensities (see Craig v. Reed, 272 A.D.2d 288, 707 N.Y.S.2d 887; Lugo v. Angle of Green, 268 A.D.2d 567, 702 N.Y.S.2d 608).

The defendant's moving papers established his entitlement to judgment as a matter of law. In opposition to the motion, the plaintiffs failed to raise a triable issue of fact as to whether the defendant's dog had vicious propensities or whether he knew or should have known of such alleged propensities. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

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