Fox v. Martin

174 A.D.2d 875, 571 N.Y.S.2d 161, 1991 N.Y. App. Div. LEXIS 8322

Opinion

—Mercure, J.

Appeal from an order of the Supreme Court (White, J.), entered November 14, 1990 in Montgomery County, which granted defendants’ motion for summary judgment dismissing the complaint.

Plaintiff commenced this action to recover for injuries sustained by plaintiff’s infant daughter when she was bitten by defendants’ dog. The complaint alleges, inter alia, that the dog was dangerous and that defendants should have known of its vicious propensities. Defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion and plaintiff now appeals.

We affirm. Defendants supported their motion with deposition testimony that, to the best of their knowledge, the dog had never previously bitten anyone or otherwise evidenced vicious propensities. Inasmuch as proof of the animal’s ferocious nature and a defendant’s knowledge thereof is essential to a cause of action for injuries sustained in an attack by a dog (see, Muller v McKesson, 73 NY 195, 199; Lynch v Nacewicz, 126 AD2d 708; 5A Warren, Negligence in the New York Courts, Animals, §§ 4.02-4.04, at 133-135 [3d ed]), this showing established, prima facie, defendants’ entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Lynch v Nacewicz, supra, at 709; Panzer v Harding, 118 AD2d 842, 843; Russell v Lepre, 99 AD2d 489; but see, Stoop v Kurtz, 121 AD2d 529, 530). Accordingly, plaintiff’s failure to come forward with contrary evidence required Supreme Court to grant the motion (see, Zuckerman v City of New York, supra).

Weiss, J. P., Yesawich Jr., Levine and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.