| Illian v Butler |
| 2009 NY Slip Op 07730 [66 AD3d 1312] |
| October 29, 2009 |
| Appellate Division, Third Department |
| Ann Illian et al., Appellants, v Gail Butler et al.,Respondents. |
—[*1] Murphy & Lambiase, Goshen (George A. Smith of counsel), for respondents.
Garry, J. Appeal from an order of the Supreme Court (Cahill, J.), entered July 11, 2008 inUlster County, which granted defendants' motion for summary judgment dismissing thecomplaint.
In June 2005, while plaintiffs were temporarily residing at a campground in Accord, UlsterCounty, plaintiff Ann Illian (hereinafter plaintiff) was bitten by Sadie, a mixed-breed dogbelonging to defendants, who also resided at the campground. Defendants and plaintiffs hadknown one another for years, and plaintiff was also well acquainted with the dog. Plaintifftestified that she had patted Sadie, played with her, and kissed her on numerous prior occasionswithout incident, and had once even taken her to the veterinarian. On the day of plaintiff's injury,she attended a party at defendants' campground residence to celebrate defendant Jeffrey Sloat'sbirthday. During the party, Sadie was tied by a chain on defendants' front porch, where plaintiffpatted her once or twice in the course of the evening. Shortly before she was bitten, plaintiff leftdefendants' residence briefly. Upon her return, she reached out to pat Sadie as she climbed theporch steps. The dog lunged and bit plaintiff in the face.
Plaintiff and her husband, derivatively, commenced this action in May 2007. Defendantsmoved for summary judgment dismissing the complaint, contending that they neither knew norshould have known of the dog's vicious propensities. Supreme Court granted defendants' motion.Plaintiffs now appeal.
" '[A] plaintiff may not recover for injuries sustained in an attack by a dog unless he or [*2]she establishes that the dog had vicious propensities and that itsowner knew or should have known of such propensities' " (Malpezzi v Ryan, 28 AD3d 1036, 1037 [2006], quoting Palleschi v Granger, 13 AD3d871, 872 [2004]; see Collier vZambito, 1 NY3d 444, 446 [2004]). The owner's knowledge may be established byproving that the owner had notice of either a prior bite or other conduct that would give rise to aninference of vicious propensities (see Collier v Zambito, 1 NY3d at 446-447)."[E]vidence that the dog 'had been known to growl, snap or bare its teeth' might be enough toraise a question of fact, depending on the circumstances" (Brooks v Parshall, 25 AD3d 853, 853-854 [2006], quotingCollier v Zambito, 1 NY3d at 447). Once knowledge of a dog's vicious propensities hasbeen established, the owner faces strict liability (see Bard v Jahnke, 6 NY3d 592, 596-597 [2006]; Collier vZambito, 1 NY3d at 448).
Defendants supported their motion for summary judgment with their own testimony thatSadie, whom they had owned since she was five weeks old, had never previously bitten anyoneand that they had never seen her behave aggressively nor received complaints from anyone abouther behavior. In addition, they submitted plaintiffs' testimony that, in numerous previousinteractions with Sadie, they had not known her to bite or threaten anyone and had neverexpressed concern about her to defendants (see CPLR 3212 [b]; Rose v Heaton, 39 AD3d 937, 938[2007]; Campo v Holland, 32AD3d 630, 631 [2006]; Brooks v Parshall, 25 AD3d at 854). This evidence wassufficient to shift the burden to plaintiffs to establish the existence of triable issues of fact(see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Plaintiffs' evidence was insufficient to meet their burden (see id.), particularly inlight of their own long-standing familiarity with the dog. Plaintiffs submitted the testimony ofdefendants' former neighbor that Sadie barked, jumped, and ran onto the neighbor's campsitewhen she and her husband drove in. The campground activities director testified that on oneoccasion the dog frightened her by leaping off the porch, barking, and running toward her as shewalked past. Neither witness had made any complaint to defendants regarding the dog'sbehavior. Further, these observations merely reveal "typical territorial behavior," insufficient toestablish vicious propensities (Blackstone v Hayward, 304 AD2d 941, 941 [2003], lvdenied 100 NY2d 511 [2003]; see Campo v Holland, 32 AD3d at 631; Fontanasv Wilson, 300 AD2d 808, 808-809 [2002]). Plaintiffs also submitted the testimony ofplaintiff's sister and the affidavit of the sister's husband that, about a month before plaintiff wasbitten, Sadie growled at the husband. A single incident of growling does not, however, establishthat a dog has vicious propensities (see Rose v Heaton, 39 AD3d at 938; Brooks vParshall, 25 AD3d at 854). Further, the husband could not confirm that either of thedefendants was present during this incident, and neither he nor the sister alleged that they tolddefendants about it. Finally, as the campground required all dogs to be leashed, the fact thatdefendants kept Sadie tethered does not indicate any knowledge of the alleged viciouspropensities (see Collier v Zambito, 1 NY3d at 447). While witness testimonycontradicting an owner's claims relative to a dog's conduct may be sufficient to establish issuesof fact as to credibility or the owner's constructive knowledge, the proof presented here does notrise to that level (see Loper vDennie, 24 AD3d 1131, 1133 [2005]; Czarnecki v Welch, 13 AD3d 952, 953 [2004]). Defendants weretherefore entitled to summary judgment dismissing the complaint.
Rose, J.P., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, with costs.