HAI v. PSORAS (2018)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

On June 3, 2008, the plaintiff Ishfaq Hai (hereinafter Ishfaq), then 11 years old, allegedly was injured when he was bitten by a dog in the care of the defendant Athena Psoras (hereinafter Athena).  According to Ishfaq, he was walking past Athena's son, Nektarios, who was walking the dog, when the dog jumped up and bit him in the arm.  Thereafter, the plaintiffs commenced this action to recover damages for the injuries allegedly sustained by Ishfaq.  Athena moved for summary judgment dismissing the complaint insofar as asserted against her on the ground that she had no notice of the dog's alleged vicious propensities.  The Supreme Court granted the motion.  The plaintiffs appeal.  We affirm.

To recover damages for injuries caused by a dog bite or attack upon a theory of strict liability, “a plaintiff must establish that the dog had vicious propensities and that the owner [or harborer] knew or should have known of the dog's vicious propensities” (Ioveno v. Schwartz, 139 A.D.3d 1012, 1012, 32 N.Y.S.3d 297;  see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993;  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;  Hodgson–Romain v. Hunter, 72 AD3d 741, 899 N.Y.S.2d 300;  Palumbo v. Nikirk, 59 A.D.3d 691, 691, 874 N.Y.S.2d 222).  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 (see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463;  Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254;  Ioveno v. Schwartz, 139 A.D.3d at 1012, 32 N.Y.S.3d 297;  Bueno v. Seecharan, 136 A.D.3d 702, 703, 24 N.Y.S.3d 203;  Matthew H. v. County of Nassau, 131 A.D.3d at 147, 14 N.Y.S.3d 38;  Hodgson–Romain v. Hunter, 72 A.D.3d at 741, 899 N.Y.S.2d 300).  “Knowledge of an animal's vicious propensities may also be discerned, by a jury, from the nature and result of the attack” (Matthew H. v. County of Nassau, 131 A.D.3d at 148, 14 N.Y.S.3d 38;  see Wilson v. Livingston, 305 A.D.2d 585, 586, 762 N.Y.S.2d 408).

Here, Athena made a prima facie showing of her entitlement to judgment as a matter of law by demonstrating that she was not aware, nor should she have been aware, that the dog had ever bitten anyone or exhibited aggressive behavior prior to the attack (see Carroll v. Kontarinis, 150 A.D.3d 960, 960–961, 54 N.Y.S.3d 448;  Xin Kai Li v. Miller, 150 A.D.3d 1051, 1052, 54 N.Y.S.3d 652;  Ioveno v. Schwartz, 139 A.D.3d at 1013, 32 N.Y.S.3d 297;  Bueno v. Seecharan, 136 A.D.3d at 703, 24 N.Y.S.3d 203).  The deposition testimony of Athena, Nektarios, and the plaintiffs demonstrated that, in the time that the dog was being cared for by Athena, it never bit anyone, nor did it growl, snarl, bark, lunge, snap, or bare its teeth.

In opposition, the plaintiffs failed to raise a triable issue of fact as to whether Athena knew or should have known of the dog's alleged vicious propensities.  The fact that the dog had previously bitten and locked its jaws on a stick was insufficient to raise a triable issue of fact as to whether it had vicious propensities (see Collier v. Zambito, 1 N.Y.3d at 447–448, 775 N.Y.S.2d 205, 807 N.E.2d 254;  Ioveno v. Schwartz, 139 A.D.3d at 1013, 32 N.Y.S.3d 297).  Nektarios' testimony that he told Ishfaq to get away from the dog just before the attack does not indicate that he believed the dog to be dangerous.  Indeed, Ishfaq testified that Nektarios had invited him to pet the dog approximately one week prior to the incident and said that it would not bite, indicating Nektarios did not believe the dog to be dangerous (see Collier v. Zambito, 1 N.Y.3d at 448, 775 N.Y.S.2d 205, 807 N.E.2d 254).  Further, the nature and severity of the attack does not demonstrate that Athena knew or should have known of the dog's alleged vicious propensities (see Malpezzi v. Ryan, 28 A.D.3d 1036, 1038, 815 N.Y.S.2d 295;  Sers v. Manasia, 280 A.D.2d 539, 540, 720 N.Y.S.2d 192).

Accordingly, we agree with the Supreme Court's determination to grant Athena's motion for summary judgment dismissing the complaint insofar as asserted against her.

RIVERA, J.P., MILLER, BARROS and CONNOLLY, JJ., concur.