Francis v. Becker

50 A.D.3d 1507, 857 N.Y.S.2d 824

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2008
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Oswego County (Norman W Setter, Jr., J.), entered May 22, 2007 in a personal injury action. The order granted defendants’ motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she was attacked by two dogs owned by defendant David Becker and harbored at the home of defendant Mary Becker. Supreme Court erred in granting defendants’ motion seeking summary judgment dismissing the complaint. Defendants met their initial burden on the motion by submitting proof that they did not know or have reason to know of the dogs’ vicious propensities (see Collier v Zambito, 1 NY3d 444, 446-447 [2004]). In opposition to the motion, however, plaintiff submitted evidence that the dogs were pit bull mixes that were kept, at least in part, to serve as guard dogs (see Loper v Dennie, 24 AD3d 1131, 1132-1133 [2005]; Beljean v Maiuzzo, 256 AD2d 533 [1998]). That evidence, combined with the evidence of the unprovoked and vicious nature of the attack and the extent and severity of the injuries sustained by plaintiff, is “sufficient to raise triable issues of fact as to whether the dog[s] had vicious propensities and whether the defendants knew or should have known of them” (Beljean, 256 AD2d at 534; see Calabro v Bennett, 291 AD2d 616 [2002]; Lynch v Nacewicz, 126 AD2d 708, 709 [1987]; cf. Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008]). Present— Hurlbutt, J.P., Martoche, Lunn, Green and Gorski, JJ.