McLANE III v. JONES

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

Sandy McLANE, as Parent and Natural Guardian of John Paul McLane, III, Plaintiff-Respondent, v. Wendy JONES, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, SMITH, PINE, AND HAYES, JJ. Brown & Kelly, LLP, Buffalo (Renata Kowalczuk of Counsel), for Defendant-Appellant. Thomas C. Pares, Buffalo, for Plaintiff-Respondent.

Plaintiff commenced this action seeking damages for injuries sustained by her son when he was bitten by defendant's dog.   Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint.   Defendant met her initial burden on the motion by establishing that she did not have actual or constructive notice of her dog's alleged vicious propensities (see Tomaszewski v. Seewaldt, 306 A.D.2d 907, 761 N.Y.S.2d 908;  Dixon v. Frazini, 188 A.D.2d 1054, 592 N.Y.S.2d 208;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   We conclude, however, that plaintiff raised an issue of fact whether defendant knew or should have known of her dog's alleged vicious propensities by submitting evidence that, prior to the incident herein, defendant's dog would run along defendant's side-yard fence and would behave in an aggressive manner by jumping on the fence, casting her paws over the fence, and barking and growling as pedestrians passed by the house (see Collier v. Zambito, 1 N.Y.3d 444, 446-447, 775 N.Y.S.2d 205, 807 N.E.2d 254;  cf. Sorel v. Iacobucci, 221 A.D.2d 852, 853, 633 N.Y.S.2d 688).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: