| Levine v Kadison |
| 2010 NY Slip Op 00819 [70 AD3d 651] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Ellen Levine, Appellant, v Andrew M. Kadison et al.,Respondents. |
—[*1] Damelio, Georgen & Manson, Middletown, N.Y. (David B. Manson of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Lefkowitz, J.), entered March 24, 2009, which grantedthe defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On July 1, 2007, the defendants' dog came down the defendants' driveway in the direction ofthe plaintiff as she was taking a neighborhood walk. The plaintiff then entered the defendants'driveway to pet the dog, which she had petted on two previous occasions without incident. Afterthe plaintiff petted the dog for a minute or two, the dog suddenly jumped up and bit her face. Theplaintiff thereafter commenced this action against the defendant dog owners to recover damagesfor personal injuries.
" '[W]hen harm is caused by a domestic animal, its owner's liability is determinedsolely by application of the rule articulated in Collier [v Zambito (1NY3d 444 [2004])]'—i.e., the rule of strict liability for harm caused by a domestic animalwhose owner knows or should have known of the animal's vicious propensities" (Petrone v Fernandez, 12 NY3d546, 550 [2009], quoting Bard vJahnke, 6 NY3d 592, 599 [2006]; see Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008];Collier v Zambito, 1 NY3d at 446-447). Here, through submission of the defendants'deposition testimony and the affidavit of the defendant Andrew M. Kadison, the defendantsestablished, prima facie, that they lacked knowledge of the dog's vicious propensities, as theydemonstrated that the dog had never previously been aggressive, growled, bared his teeth, bittenanyone, or exhibited any other hallmark signs of viciousness (see Bard v Jahnke, 6NY3d at 597; Collier v Zambito, 1 NY3d at 446-447; Dykeman v Heht, 52 AD3d 767, 769 [2008]). In opposition, theplaintiff failed to raise a triable issue of fact (see Collier v Zambito, 1 NY3d at 447;cf. Dykeman v Heht, 52 AD3d at 769). The plaintiff's affidavit, which was her solesubmission in opposition to the defendants' motion, raised only feigned issues of fact designed toavoid the consequences of her earlier deposition testimony (see Knox v United Christian Church of God, Inc., 65 AD3d 1017[2009]; Hunt v [*2]Meyers, 63 AD3d 685 [2009]; Denicola v Costello, 44 AD3d990 [2007]). Rivera, J.P., Leventhal, Hall and Sgroi, JJ., concur.