PERRY v. MIKOLAJCZYK

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

Lynn M. PERRY, Individually and as Mother and Natural Guardian of Kyle S. Aloi, an Infant, Plaintiff-Respondent, v. Catherine C. MIKOLAJCZYK, Defendant-Appellant.

Decided: March 31, 1999

PRESENT:  GREEN, J.P., PINE, WISNER, HURLBUTT and CALLAHAN, JJ. John K. Plumb of counsel, Beckstrom & Plumb, Jamestown, for defendant-appellant. John Collins of counsel, for plaintiff-respondent. Thomas M. Mercure, Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo.

Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.   Plaintiff's son, Kyle, then seven years old, was bitten by defendant's dog, a 13-year-old male of mixed husky-shepherd breed.   The dog was usually kept chained but Kyle saw him running loose in the neighborhood, grabbed his chain and returned him to defendant's yard, where the dog was rechained.   The dog then suddenly attacked Kyle, allegedly without provocation, causing injuries to Kyle that required his hospitalization.   Defendant met her initial burden by tendering proof in admissible form establishing that she had no knowledge that the dog had vicious propensities.   Although plaintiff raised an issue of fact whether the dog had vicious propensities by submitting Kyle's deposition testimony, she failed to raise the additional requisite issue of fact whether defendant knew or should have known of them (see, Wilson v. Whiteman, 237 A.D.2d 814, 655 N.Y.S.2d 126;  DiGrazia v. Castronova, 48 A.D.2d 249, 252, 368 N.Y.S.2d 898, citing PJI 2:220).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: