Toolan v. Hertel

201 A.D.2d 816, 607 N.Y.S.2d 198, 1994 N.Y. App. Div. LEXIS 1151

Opinion

Appeal from an order of the Supreme Court (Tait, Jr., J.), entered December 8, 1992 in Madison County, which granted defendants’ motion for summary judgment dismissing the complaint.

In our view, defendants’ motion for summary judgment was properly granted in this action seeking to recover for personal injuries sustained by plaintiff after she was attacked by a 175-pound male English Mastiff owned by defendants. In order to establish a prima facie case of strict liability in a dog bite case, the plaintiff must establish that the animal had vicious propensities and that its owner had knowledge of such propensities. Here, in support of their motion for summary judgment relief, defendants satisfied their initial burden by submitting proof in admissible form establishing that their dog was a gentle, friendly animal that had never previously exhibited vicious tendencies of any kind. Plaintiff’s proof in opposition offered nothing more than speculation as to the dog’s nature and defendants’ knowledge of same.

Cardona, P. J., Mikoll, White, Casey and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.