| Christian v Petco Animal Supplies Stores, Inc. |
| 2008 NY Slip Op 06790 [54 AD3d 707] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Danielle Christian et al., Appellants, v Petco AnimalSupplies Stores, Inc., et al., Respondents. |
—[*1] Birzon, Strang & Bazarsky, Smithtown, N.Y. (Joseph K. Strang of counsel), for respondentsPetco Animal Supplies Stores, Inc., and Petco Animal Supplies, Inc. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (George J. Wilson and John Hoefling of counsel),for respondent Kenneth Coughlin.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so muchof an order of the Supreme Court, Nassau County (Galasso, J.), dated July 16, 2007, as grantedthat branch of the motion of the defendant Kenneth Coughlin which was for summary judgmentdismissing the complaint insofar as asserted against him and the cross motion of the defendantsPetco Animal Supplies Stores, Inc., and Petco Animal Supplies, Inc., for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
The infant plaintiff (hereinafter the plaintiff) allegedly sustained personal injuries when shewas bitten by a dog owned by the defendant Kenneth Coughlin at a store owned and operated bythe defendants Petco Animal Supplies Stores, Inc., and Petco Animal Supplies, Inc. (hereinaftertogether Petco). Coughlin moved, and Petco cross-moved, inter alia, for summary judgmentdismissing the complaint insofar as asserted against them, alleging that there was no evidence ofprior actual [*2]knowledge of the vicious propensity of the dog.
To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that "thedog had vicious propensities and that the owner of the dog, or person in control of the premiseswhere the dog was, knew or should have known of such propensities" (Claps v Animal Haven, Inc., 34 AD3d715, 716 [2006]; see Bernstein vPenny Whistle Toys, Inc., 10 NY3d 787, 788 [2008]).
The defendants established their prima facie entitlement to judgment as a matter of law onthe first cause of action premised on strict liability. The evidence submitted established that thedefendants were not aware, nor should they have been aware, that this dog had ever bitten anyoneor exhibited any aggressive behavior (see Bernstein v Penny Whistle Toys, Inc., 10 NY3dat 788; Bard v Jahnke, 6 NY3d592, 596-597 [2006]; Collier vZambito, 1 NY3d 444, 446-448 [2004]). The plaintiffs, in opposition, failed to submitany evidence sufficient to raise a triable issue of fact as to whether there was any priorknowledge of the dog's vicious propensities (see Bard v Jahnke, 6 NY3d at 596-597;Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The plaintiffs' remaining contention is without merit. Skelos, J.P., Ritter, Florio and Carni,JJ., concur. [See 16 Misc 3d 1114(A), 2007 NY Slip Op 51413(U).]