COON v. HOLMES (1998)

In an action to recover damages for personal injuries, etc., the defendants Barbara Holmes, Randy Holmes, and Robert Wakely appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (DeMaro, J.), entered July 10, 1997, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

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

The infant plaintiff was injured when the appellants' dog bit her in the face.   The deposition testimony of the parties indicated that there was at least one prior incident when the dog either nipped or scratched another child, and there was a “Beware of Dog” sign on the property.   The testimony also indicated that the dog was regularly kept in a cage during the day, had previously chased a telephone repairman, regularly growled at landscapers, and had previously escaped his choker collar.   The evidence thus raised triable issues of fact as to whether the dog possessed vicious propensities and whether his owners were aware of them (see, Brice v. Bauer, 108 N.Y. 428, 15 N.E. 695;  Rider v. White, 65 N.Y. 54;  Bohm v. Nystrum Constr., 208 A.D.2d 668, 617 N.Y.S.2d 520).

MEMORANDUM BY THE COURT.