| Miletich v Kopp |
| 2010 NY Slip Op 00760 [70 AD3d 1095] |
| February 4, 2010 |
| Appellate Division, Third Department |
| Heidi J. Miletich et al., Appellants v Christopher Kopp et al.,Respondents. |
—[*1] Law Offices of Mary Audi Bjork, Dewitt (Craig P. Niederpruem of counsel), forrespondents.
Malone Jr., J. Appeal from an order of the Supreme Court (Demarest, J.), entered February27, 2009 in Franklin County, which, among other things, granted defendants' motion forsummary judgment dismissing the complaint.
Plaintiff Heidi J. Miletich (hereinafter plaintiff) and her husband, derivatively, commencedthis action alleging that defendants' dog bit plaintiff. As plaintiff, a stranger to the dog,approached defendants' front door, the dog, which was tied nearby, bit her twice on her left legand she either fell or was knocked to the ground, injuring her right wrist. Plaintiffs now appealSupreme Court's dismissal of the complaint upon cross motions for summary judgment. Weaffirm.
" '[A] plaintiff may not recover for injuries sustained in an attack by a dog unless he or sheestablishes that the dog had vicious propensities and that its owner knew or should have knownof such propensities' " (Scheidt vOberg, 65 AD3d 740, 740 [2009], quoting Palleschi v Granger, 13 AD3d 871, 872 [2004]; see Collier v Zambito, 1 NY3d444, 446 [2004]; Malpezzi vRyan, 28 AD3d 1036, 1037 [2006]). A dog's vicious propensities may be evidenced byprior vicious behavior such as biting, growling, snapping or baring its teeth, and an inferencethat the owner is aware of such a propensity may be raised where, for example, the dog ismaintained as a guard dog or is restrained by the owner out of a concern that the dog will putothers at risk of harm (see Collier v Zambito, 1 NY3d at 447; Illian v Butler, 66 AD3d 1312,1313 [2009]; Morse [*2]v Colombo, 8 AD3d 808, 809 [2004]). The breed of a dog,alone, does not create a triable issue of fact as to the dog's propensities, but may be consideredtogether with other factors (see Loper vDennie, 24 AD3d 1131, 1133 [2005]).
Defendants satisfied their initial burden on summary judgment by submitting the transcriptsof several examinations before trial establishing that defendants acquired the dog, a purebredChow Chow, as a family pet when he was eight weeks old and owned him for approximatelyfour years prior to the incident without knowledge of any vicious propensities (see Scheidt vOberg, 65 AD3d at 740; Blackstone v Hayward, 304 AD2d 941, 941 [2003], lvdenied 100 NY2d 511 [2003]). The burden then shifted to plaintiffs to demonstrate a triableissue of material fact, which plaintiffs failed to do (see Malpezzi v Ryan, 28 AD3d at1037). Evidence that defendants routinely restrained the dog to keep him from running awaydoes not support an inference that defendants were aware that the dog might pose a danger(see Palleschi v Granger, 13 AD3d at 872; Campo v Holland, 32 AD3d 630, 632 [2006]). Nor does evidencethat the dog was "nippy" or "territorial" when he was just several weeks old raise a triable issueas to defendants' liability (see Tessiero v Conrad, 186 AD2d 330 [1992]; compare Earl v Piowaty 42 AD3d865, 866 [2007]). Defendant Christopher Kopp's testimony that he has seen the Chow Chowbreed identified as potentially aggressive and was aware of incidences of aggressivenessinvolving that breed does not, by itself, create an issue of fact regarding defendants' knowledgeof any vicious propensities in their dog (see Malpezzi v Ryan, 28 AD3d at 1038).Finally, the manner in which plaintiff was bitten does not support an inference that the dog wasaggressive, where plaintiff never saw the dog until immediately before she was bitten and Kopptestified that the dog had been sleeping and was startled by plaintiff's presence (see id.;Arcara v Whytas, 219 AD2d 871, 872 [1995]). Accordingly, the complaint was properlydismissed.
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withcosts.