Figueroa v. Alex Auto Parts & Cars, Inc.

278 A.D.2d 8, 717 N.Y.S.2d 137, 2000 N.Y. App. Div. LEXIS 12676

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 2000
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 5, 1999, which, in an action for personal injuries sustained in an attack by a dog, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs deposition testimony that at times prior to the attack he had seen the dog, a pit bull, tied up in defendants’ yard with “a steel thick chain” and that he feared the dog is insufficient to raise an issue of fact as to the dog’s known vicious propensities (see, Joe v Orbit Indus., 269 AD2d 121, 122; cf., Moriano v Schmidt, 133 AD2d 72). Plaintiffs additional hearsay testimony that a woman from the neighborhood told him of a similar, albeit less serious, attack was not clearly linked to the same dog and did not indicate that defendants knew of the incident. Nor did such hearsay indicate when the attack on the woman occurred, creating the possibility that it occurred after the attack on plaintiff, rendering it meaningless insofar as providing notice of the dog’s vicious propensities. Concur — Sullivan, P. J., Rosenberger, Nardelli, Tom and Lerner, JJ.