A. L. (Anonymous), etc., et al., respondents, v. Juan Maldonado, et al., appellants. (2026)

Argued—January 28, 2026

DECISION & ORDER

C/

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated April 17, 2024.  The order, insofar as appealed from, denied the defendants' motion for summary judgment dismissing the complaint.

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

The infant plaintiff, and her mother suing derivatively, commenced this personal injury action against the defendants, whose dog allegedly bit the infant plaintiff.  In an order dated April 17, 2024, the Supreme Court, inter alia, denied the defendants' motion for summary judgment dismissing the complaint.  The defendants appeal.

“[T]he owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities” (Collier v. Zambito, 1 NY3d 444, 446).  “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others” (Sattler v. Passaro, 211 AD3d 983, 984, citing Collier v. Zambito, 1 NY3d at 446).  “ ‘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’ ” (Piedimonte v. Alvarenga–Benitez, 226 AD3d 933, 934, quoting Hodgson–Romain v. Hunter, 72 AD3d 741, 741;  see Cantore v. Costantine, 221 AD3d 56, 61).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating, through their deposition testimony, that they were not aware, nor should they have been aware, that the dog had previously bitten anyone or had any vicious propensities (see Slotnick v. Chaikin, 238 AD3d 1191, 1192;  Zimmer v. Maxwell, 219 AD3d 1565, 1566;  Costanza v. Scarlata, 188 AD3d 1145, 1146–1147).  In opposition, however, the plaintiffs submitted a copy of the dog's medical records, which raised triable issues of fact as to whether the dog had previously bitten someone and whether the defendants were aware or should have been aware of the dog's alleged vicious propensities (see generally Lipinsky v. Yarusso, 164 AD3d 896, 897–898;  Merino v. Martinez, 63 AD3d 1123, 1124;  Dykeman v. Heht, 52 AD3d 767, 769–770).  Contrary to the defendants' contention, the evidence that they submitted in reply, including an affidavit of the defendant Anadelas Maldonado, merely raised issues of credibility and failed to show that the dog's medical record, indicating that the dog had previously bitten someone, was a clerical error.  “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist” (Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 [internal quotation marks omitted];  see Dykeman v. Heht, 52 AD3d at 769).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

BARROS, J.P., DOWLING, VENTURA and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court