| Feit v Wehrli |
| 2009 NY Slip Op 08175 [67 AD3d 729] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Nathaniel J. Feit et al., Appellants, v Robert Wehrli et al.,Respondents. |
—[*1] Eisenberg & Kirsch, Liberty, N.Y. (Michael D. Wolff of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Pagones, J.), dated August 19, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion which were to dismiss the first, third, and fourth causes of action,and substituting therefor provisions denying those branches of the motion; as so modified, theorder is affirmed, with costs to the plaintiffs.
To recover in strict liability in tort for injuries resulting from a dog bite or attack, theplaintiff must establish that the dog had vicious propensities and that the owner knew or shouldhave known of the dog's vicious propensities (see Palumbo v Nikirk, 59 AD3d 691 [2009]; Jacobsen v Schwarz, 50 AD3d964, 965 [2008]). Evidence tending to demonstrate a dog's vicious propensities includes aprior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog wasrestrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that putsothers at risk of harm (see Bard vJahnke, 6 NY3d 592, 597 [2006]; Collier v Zambito, 1 NY3d 444, 446-447 [2004]; Galgano v Town of N. Hempstead, 41AD3d 536 [2007]).
The defendants satisfied their prima facie burden of demonstrating their entitlement tojudgment as a matter of law. In opposition, the plaintiffs raised a triable issue of fact regardingthe defendants' prior knowledge of the subject dog's alleged vicious propensities and, thus,whether the [*2]defendants could be held liable in strict liabilityfor the infant plaintiff's injuries (seeDykeman v Heht, 52 AD3d 767 [2008]; Miller v Isacoff, 39 AD3d 718 [2007]).
However, as the plaintiffs cannot recover on their second cause of action allegingcommon-law negligence (see Petrone vFernandez, 12 NY3d 546 [2009]; Bard v Jahnke, 6 NY3d at 599; Frank v Eaton, 54 AD3d 805[2008]), that branch of the defendants' motion which was to dismiss that cause of action wasproperly granted. Dillon, J.P., Miller, Angiolillo and Dickerson, JJ., concur.