| Palumbo v Nikirk |
| 2009 NY Slip Op 01454 [59 AD3d 691] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Sabatino Palumbo, Appellant, v Virginia Nikirk et al.,Respondents. |
—[*1] Paganini, Gambeski, Cioci, Cusumano & Farole, Lake Success, N.Y. (Valerie I. Goerlich ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Iannacci, J.), dated March 18, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, a mail carrier, sustained injuries when he allegedly was bitten and attacked bya dog on the front steps of the defendants' house as he attempted to deliver the mail. Theplaintiff, who crossed over the defendants' lawn and driveway from the house next door, andwhose view of the dog was obstructed by a bush, did not see the dog or hear it bark until heopened the lid of the mailbox and was bitten.
To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff mustprove that the dog had vicious propensities and that the owner of the dog, or person in control ofthe premises where the dog was, knew or should have known of such propensities (see Bard v Jahnke, 6 NY3d 592[2006]; Collier v Zambito, 1 NY3d444, 448 [2004]; Christian v PetcoAnimal Supplies Stores, Inc., 54 AD3d 707, 708 [2008]; Claps v Animal Haven, Inc., 34 AD3d715, 716 [2006]). " 'Vicious propensities include the 'propensity to do any act that mightendanger the safety of the persons and property of others in a given situation' " (Collier vZambito, 1 NY3d at 446, quoting Dickson v McCoy, 39 NY 400, 403 [1868];see Claps v Animal Haven, Inc., 34 AD3d at 716).[*2]
Here, the defendants established their prima facieentitlement to judgment as a matter of law by presenting evidence that the dog had never bitten,jumped, or growled at anyone prior to the incident in question, nor had the dog exhibited anyother aggressive or vicious behavior (see Christian v Petco Animal Supplies Stores, Inc.,54 AD3d at 708; Wilson v Whiteman, 237 AD2d 814, 814-815 [1997]). Inopposition, the plaintiff failed to come forward with any proof in evidentiary form that the doghad ever previously bitten anyone or exhibited any vicious propensities. Furthermore, thepresence of a "Beware of Dog" sign on the premises, the breed of the dog, and the owner'stestimony that the dog was always on a leash were insufficient to raise a triable issue of fact as tothe dog's vicious propensities in the absence of any evidence that prior to this incident the dogexhibited any fierce or hostile tendencies (see Sers v Manasia, 280 AD2d 539, 540[2001]; Lugo v Angle of Green, 268 AD2d 567 [2000]; Arcara v Whytas, 219AD2d 871, 872 [1995]; DeVaul v Carvigo Inc., 138 AD2d 669, 670 [1988]). Rivera,J.P., Dillon, Miller, Balkin and Leventhal, JJ., concur.