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Supreme Court, Appellate Division, Fourth Department, New York.

Andrea COLLIER, as Parent and Natural Guardian for Matthew Collier, an Infant, Plaintiff-Respondent, v. Charles ZAMBITO and Mary Zambito, Defendants-Appellants.

Decided: November 15, 2002

Present GREEN, J.P., HAYES, SCUDDER, GORSKI, and LAWTON, JJ. Williamson, Clune & Stevens, Ithaca (Allan C. Van de Mark of Counsel), for Defendants-Appellants. Karpinski, Stapleton, Galbato & Tehan, P.C., Auburn (David G. Tehan of Counsel), for Plaintiff-Respondent.

 Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint.   Plaintiff commenced this action seeking damages for injuries sustained by her then 12-year-old son when he was bitten by defendants' dog while a guest at defendants' home.   In support of their motion, defendants submitted their deposition testimony wherein they testified that their dog barked and became excited when they had visitors at their home but had no history of biting or behaving in a threatening manner toward anyone.   Defendants thereby met their initial burden by tendering proof in admissible form establishing that they had no knowledge that their dog had vicious propensities, and plaintiff failed to raise an issue of fact whether defendants knew or should have known of their dog's alleged vicious propensities (see Lynch v. Nacewicz, 126 A.D.2d 708, 708-709, 511 N.Y.S.2d 121;  see also Elmore v. Wukovits, 288 A.D.2d 875, 732 N.Y.S.2d 508;  Plennert v. Abel, 269 A.D.2d 796, 704 N.Y.S.2d 417).

 The dissent properly states that a dog owner may be liable for injuries caused by the dog if the owner had prior knowledge of the dog's vicious propensities (see e.g. Anderson v. Carduner, 279 A.D.2d 369, 720 N.Y.S.2d 18;  Mitura v. Roy, 174 A.D.2d 1020, 572 N.Y.S.2d 182).   However, the injuries for which recovery is sought must arise from such propensities.   Here, there is no evidence that the dog had a propensity to bite or otherwise behave in a threatening manner, and thus there can be no liability (see Plennert, 269 A.D.2d 796, 704 N.Y.S.2d 417).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the complaint is dismissed.

The owner of a dog will be held liable for injuries caused by the dog if the owner had prior knowledge of the dog's vicious propensities.  “ ‘[V]icious propensities which go to establish liability include a propensity to do any act which might endanger another’ ” (Mitura v. Roy, 174 A.D.2d 1020, 1020, 572 N.Y.S.2d 182).  “A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act” (Anderson v. Carduner, 279 A.D.2d 369, 369-370, 720 N.Y.S.2d 18 [internal quotation marks omitted] ).   The record before us establishes that defendants regularly kept Cecil segregated from persons other than immediate family members by way of a gate or a leash because of his excitable temperament, which was well known to defendants.   Plaintiff's son described Cecil as “[v]ery wild,” and he testified that Cecil “runs around a lot” and barks, and plaintiff testified that, on the day of the incident, Cecil was “very active” and “jumping.”   Yet defendant invited plaintiff's son to approach Cecil, to allow Cecil to “smell” him.   By all accounts, Cecil's attack on plaintiff's son was severe and unprovoked.   Because defendants were aware of Cecil's aggressive and intimidating behavior, i.e., his running, jumping and barking, we conclude that plaintiff raised an issue of fact whether defendants knew or should have known of Cecil's dangerous propensities and, if so, whether defendant was negligent in initiating the contact between plaintiff's son and Cecil (see Berry v. Whitney, 288 A.D.2d 857, 732 N.Y.S.2d 319).


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