CALABRO v. BENNETT (2002)

Appeal from an order of the Supreme Court (Sheridan, J.), entered December 4, 2000 in Saratoga County, which denied defendants' motion for summary judgment dismissing the complaint.

Plaintiff seeks damages for injuries sustained from having been bitten in the face by defendants' Siberian husky.   Defendants moved for summary judgment contending that they lacked knowledge that their dog had vicious propensities.   Supreme Court denied the motion and defendants appeal.

 We affirm.   An owner is strictly liable for personal injuries caused by a domestic animal if the evidence establishes that the animal had vicious propensities and that the owner knew or should have known of this fact (see, Velazquez v. Carns, 244 A.D.2d 620, 620, 663 N.Y.S.2d 705).  “ ‘Vicious propensity’ has been defined as ‘the tendency of [an animal] to do an act which might endanger another’ ” (Brophy v. Columbia County Agric. Socy., 116 A.D.2d 873, 874, 498 N.Y.S.2d 193, quoting Wheaton v. Guthrie, 89 A.D.2d 809, 810, 453 N.Y.S.2d 480).  “Proof of a previous attack is unnecessary where other factors are indicative of knowledge * * * ” (Brophy v. Columbia County Agric. Socy., supra, at 874, 498 N.Y.S.2d 193 [citation omitted] ).   Proof that the animal previously bit a human is not required (see, Lagoda v. Dorr, 28 A.D.2d 208, 209, 284 N.Y.S.2d 130).   With these rules in mind and giving plaintiff the benefit of every favorable inference (see, Blake-Veeder Realty v. Crayford, 110 A.D.2d 1007, 1008, 488 N.Y.S.2d 295), we agree with Supreme Court's determination.

 While we view defendants' deposition testimony and affidavits as sufficient to shift the summary judgment burden to plaintiff, we find plaintiff's evidence met that burden.   Specifically, the evidence shows that the dog was tethered at all times when not in the house, he was territorial, aggressively barking when his area was invaded (see, e.g., Sorel v. Iacobucci, 221 A.D.2d 852, 853, 633 N.Y.S.2d 688), frequently jumped on people (see, Lagoda v. Dorr, supra, at 209, 284 N.Y.S.2d 130), attacked another animal (see, Cronin v. Chrosniak, 145 A.D.2d 905, 906, 536 N.Y.S.2d 287), and defendants admitted knowledge of all of these factors.   When this evidence is combined with the evidence of the manner in which the incident occurred and the extent and gravity of the injuries sustained by plaintiff (see, e.g., Lynch v. Nacewicz, 126 A.D.2d 708, 709, 511 N.Y.S.2d 121), there is sufficient evidence to defeat defendants' motion for summary judgment.

As a result of this decision, we need not address plaintiff's argument with respect to the need for additional discovery.

ORDERED that the order is affirmed, with costs.

MUGGLIN, J.

CARDONA, P.J., PETERS, ROSE and LAHTINEN, JJ., concur.