LOBO v. MESSINA (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (C. Stephen Hackeling, J.), dated June 1, 2023.  The order, insofar as appealed from, granted the motion of the defendants Christopher Messina and Tracy Messina for summary judgment dismissing the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In July 2017, the plaintiff allegedly was injured when she was bitten by a dog owned by the defendants Christopher Messina and Tracy Messina (hereinafter together the Messina defendants) while the plaintiff was visiting the home of the defendant Thomas O'Dwyer.  The plaintiff thereafter commenced this action against the defendants.  The Messina defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them.  By order dated June 1, 2023, the Supreme Court, inter alia, granted the Messina defendants’ motion.  The plaintiff appeals.

“To recover in strict liability for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities” (Sattler v. Passaro, 211 A.D.3d 983, 984, 180 N.Y.S.3d 288;  see Costanza v. Scarlata, 188 A.D.3d 1145, 1146–1147, 132 N.Y.S.3d 844).  “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.  Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” (Agro v. Olivieri, 226 A.D.3d 734, 734, 209 N.Y.S.3d 454 [internal quotation marks omitted];  see Sattler v. Passaro, 211 A.D.3d at 984, 180 N.Y.S.3d 288;  Hai v. Psoras, 166 A.D.3d 732, 733, 87 N.Y.S.3d 239).  However, “[k]nowledge of ‘normal canine behavior,’ such as running around, pulling on a leash and barking at another dog or passersby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities” (Brooks v. Adell, 211 A.D.3d 792, 793, 181 N.Y.S.3d 125, quoting Collier v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254;  see Agro v. Olivieri, 226 A.D.3d at 735, 209 N.Y.S.3d 454).  “Knowledge of an animal's vicious propensities may also be discerned, for example, from the nature and result of the attack” (Agro v. Olivieri, 226 A.D.3d at 734, 209 N.Y.S.3d 454 [internal quotation marks omitted];  see I.A. v. Mejia, 174 A.D.3d 770, 771–772, 105 N.Y.S.3d 103).

Here, the Messina defendants established, prima facie, that they neither knew nor should have known that the dog had vicious propensities (see Agro v. Olivieri, 226 A.D.3d at 735, 209 N.Y.S.3d 454).  Contrary to the plaintiff's contention, Christopher Messina's alleged statement immediately following the incident that he wanted to put the dog to sleep did not present a triable issue of fact as to whether the dog had vicious propensities (see Costanza v. Scarlata, 188 A.D.3d at 1146–1147, 132 N.Y.S.3d 844;  Xin Kai Li v. Miller, 150 A.D.3d 1051, 1052, 54 N.Y.S.3d 652).  In opposition, the plaintiff failed to raise a triable issue of fact (see Kennedy v. Brooklyn Hospitality, LLC, 217 A.D.3d 931, 932, 191 N.Y.S.3d 734;  Brooks v. Adell, 211 A.D.3d at 793, 181 N.Y.S.3d 125).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court properly granted the Messina defendants’ motion for summary judgment dismissing the amended complaint insofar as asserted against them.

IANNACCI, J.P., FORD, VOUTSINAS and MCCORMACK, JJ., concur.