LIU v. CHU (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), dated June 13, 2023.  The order, insofar as appealed from, denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint is granted.

In April 2020, the plaintiff allegedly was injured when he was knocked to the ground by a dog owned by the defendants while he was delivering food to the defendants’ home located in East Setauket.  Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging that the defendants had actual and constructive knowledge of the vicious propensities of their dog and, thus, in effect, were strictly liable.

In January 2023, the defendants moved for summary judgment dismissing the complaint, contending that there was no evidence that their dog possessed vicious propensities and that they had no knowledge of any such propensities.  The plaintiff opposed the motion.  In an order dated June 13, 2023, the Supreme Court, inter alia, denied the motion.  The defendants appeal.

“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” (Drakes v. Bakshi, 175 A.D.3d 465, 465, 104 N.Y.S.3d 701;  see Sattler v. Passaro, 211 A.D.3d 983, 984, 180 N.Y.S.3d 288;  Bukhtiyarova v. Cohen, 172 A.D.3d 1153, 1154, 102 N.Y.S.3d 57).  “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” (Gammon v. Curley, 147 A.D.3d 727, 728, 46 N.Y.S.3d 183 [internal quotation marks omitted];  see Murga v. Yarusso, 215 A.D.3d 979, 980, 187 N.Y.S.3d 762).  “Knowledge of vicious propensities may be established by evidence of, among other things, a prior similar attack or by evidence that the dog was known to growl, snap, or bare its teeth” (Hai v. Psoras, 166 A.D.3d 732, 733, 87 N.Y.S.3d 239;  see Flanders v. Goodfellow, 44 N.Y.3d 57, 63, 240 N.Y.S.3d 705, 267 N.E.3d 622;  Argo v. Olivieri, 226 A.D.3d 734, 734, 209 N.Y.S.3d 454).  In contrast, “ ‘[k]nowledge of normal canine behavior, such as running around, pulling on a leash and barking at another dog or passerby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities’ ” (Felice v. Margolies, 234 A.D.3d 940, 941, 227 N.Y.S.3d 611, quoting Brooks v. Adel, 211 A.D.3d 792, 793, 181 N.Y.S.3d 125;  see Argo v. Olivieri, 226 A.D.3d at 734–735, 209 N.Y.S.3d 454;  Bukhtiyarova v. Cohen, 172 A.D.3d at 1155, 102 N.Y.S.3d 57).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that they were not aware, nor should have been aware, that the dog had vicious propensities (see Bukhtiyarova v. Cohen, 172 A.D.3d at 1155, 102 N.Y.S.3d 57;  Gammon v. Curley, 147 A.D.3d at 728–729, 46 N.Y.S.3d 183).  In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's affidavit raised only feigned issues of fact designed to avoid the consequences of his earlier deposition testimony (see Hodgson–Romain v. Hunter, 72 A.D.3d 741, 742, 899 N.Y.S.2d 300;  Levine v. Kadison, 70 A.D.3d 651, 652, 892 N.Y.S.2d 893).

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint.

IANNACCI, J.P., WOOTEN, WARHIT and GOLIA, JJ., concur.