| Jacobsen v Schwarz |
| 2008 NY Slip Op 03592 [50 AD3d 964] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Sandra Jacobsen, Appellant, v Camille Schwarz,Respondent. |
—[*1] Purcell & Ingrao, P.C., Mineola, N.Y. (Lynn A. Ingrao and Ralph P. Franco, Jr., of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated March 14, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
The plaintiff commenced this action to recover damages for personal injuries allegedlysustained when she was bitten by a dog owned by the defendant. At the time of the incident, theplaintiff was working on a computer at the defendant's house. The defendant was lying on thefloor next to the plaintiff's chair playing "tug of war" with her dog and a ball. The plaintiffmaintains that when she put her hand down on the side of the chair she was bitten by the dog.The defendant moved for summary judgment arguing that there was no evidence that thedefendant knew or should have known of the dog's vicious propensities.
An "owner of a domestic animal who either knows or should have known of that animal'svicious propensities will be held liable for the harm the animal causes as a result of thosepropensities" (Collier v Zambito, 1NY3d 444, 446 [2004]). A vicious propensity is the "propensity to do any act that mightendanger the safety of the persons and property of others in a given situation" (id.,quoting Dickson v McCoy, 39 NY 400, 403 [1868]). Accordingly, in order to recover instrict liability the [*2]plaintiff must prove that the owner knew orshould have known of the vicious propensities of the animal (see Claps v Animal Haven, Inc., 34 AD3d 715, 716 [2006]). Thisknowledge may be established with evidence of "prior acts of a similar kind of which the ownerhad notice" (Collier v Zambito, 1 NY3d at 446). It is not necessary to prove a prior bite(see Bard v Jahnke, 6 NY3d592, 597 [2006]). Proof may consist of evidence that the animal had been known to "growl,snap or bare its teeth" or evidence showing whether and how the animal was restrained (seeCollier v Zambito, 1 NY3d at 447). However, restraining of the animal or barking, in and ofitself, is insufficient (see Collier vZambito, 1 NY3d 444 [2004]).
Here, the defendant failed to establish her prima facie entitlement to judgment as a matter oflaw. The defendant acknowledged at her deposition that she advised the plaintiff that the dog waspossessive about her ball and not to touch it. The defendant's son testified at his deposition thathe was told the same. The plaintiff testified at her deposition that while she was at the defendant'shouse the dog would growl as she carried the ball in her mouth and as she played "tug of war"with the defendant. These warnings along with the dog's actions with the ball may give rise to afinding that the defendant knew or should have known that the dog possessed a viciouspropensity or a proclivity to act in a way that puts others at risk of harm (see Bard v Jahnke, 6 NY3d 592,597 [2006]; Collier v Zambito, 1 NY3d at 447; Parente v Chavez, 17 AD3d 648, 649 [2005]).
Moreover, the plaintiff's sons submitted affidavits in which they stated that on a prioroccasion they observed the dog growling and baring its teeth when they came near it (see Miller v Isacoff, 39 AD3d 718[2007]). The deposition testimony along with the affidavits raised triable issues of fact as towhether the defendant knew or should have known of the dog's vicious propensities (seeCollier v Zambito, 1 NY3d at 447; Miller v Isacoff, 39 AD3d at 719).
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Skelos, J.P., Angiolillo, Leventhal and Belen, JJ., concur.