LILLO AROUCA v. MASOUD (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Peter M. Forman, J.), dated March 31, 2017.  The order granted the defendants' motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed, with costs.

On May 15, 2014, the defendants' dog bit the injured plaintiff.  Thereafter, the injured plaintiff, and her husband suing derivatively, commenced this action against the defendants, alleging, inter alia, strict liability in tort for the attack.  After joinder of issue and the filing of the note of issue, the defendants moved for summary judgment dismissing the amended complaint.  The Supreme Court granted the motion, and the plaintiffs appeal.

“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog ․ knew or should have known of such propensities” (Palumbo v. Nikirk, 59 A.D.3d 691, 691, 874 N.Y.S.2d 222;  see Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254;  Matthew H. v. County of Nassau, 131 A.D.3d 135, 144, 14 N.Y.S.3d 38;  Henry v. Higgins, 117 A.D.3d 796, 797, 987 N.Y.S.2d 72).  Vicious propensities include the propensity to do any act that might endanger the safety of the person and property of others (see Collier v. Zambito, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254;  Matthew H. v. County of Nassau, 131 A.D.3d at 147, 14 N.Y.S.3d 38;  Claps v. Animal Haven, Inc., 34 A.D.3d 715, 716, 825 N.Y.S.2d 125).  “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” (Hodgson–Romain v. Hunter, 72 A.D.3d 741, 741, 899 N.Y.S.2d 300 [citations omitted];  see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463;  Carroll v. Kontarinis, 150 A.D.3d 960, 54 N.Y.S.3d 448;  Velez v. Andrejka, 126 A.D.3d 685, 686, 5 N.Y.S.3d 212).

Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing, through the deposition testimony of the defendant Ingrid Masoud, that the defendants were not aware, nor should they have been aware, that their dog had ever bitten anyone or exhibited any aggressive behavior (see Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254;  Carroll v. Kontarinis, 150 A.D.3d at 960, 54 N.Y.S.3d 448;  Xin Kai Li v. Miller, 150 A.D.3d 1051, 1052, 54 N.Y.S.3d 652;  Ciliotta v. Ranieri, 149 A.D.3d 1032, 1032–1033, 52 N.Y.S.3d 474).

In opposition, the plaintiffs failed to raise a triable issue of fact.  The Supreme Court properly refused to consider the affidavit of the plaintiffs' son, a nonparty witness, in opposition to the defendants' motion, as he was not properly disclosed as a notice witness in the plaintiffs' discovery responses (see Henry v. Higgins, 117 A.D.3d at 797, 987 N.Y.S.2d 72;  Rizos v. Galini Seafood Rest., 89 A.D.3d 1004, 1005, 933 N.Y.S.2d 703;  Andujar v. Benenson Inv. Co., 299 A.D.2d 503, 750 N.Y.S.2d 636;  cf. Dume v. CK–HP 1985 Marcus Ave., LLC, 136 A.D.3d 860, 861, 25 N.Y.S.3d 329).  The court also properly declined to consider the “affidavits” of the defendants' neighbors.  The “affidavits” contained no jurat or other indication the neighbors had been sworn, and therefore were not in admissible form (cf. Furtow v. Jenstro Enters., Inc., 75 A.D.3d 494, 495, 903 N.Y.S.2d 754;  Collins v. AA Trucking Renting Corp., 209 A.D.2d 363, 618 N.Y.S.2d 801).

Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the amended complaint.

AUSTIN, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.