Young v. MacIsaac

187 A.D.2d 1038

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1992
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiff commenced the present action to recover for injuries sustained by her infant daughter when she was bitten by defendants’ dog. Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint.

The owners of domestic animals are not liable for injuries caused by the animals unless they knew or should have known of their vicious propensities (see, Muller v McKesson, 73 NY 195, 199; Fox v Martin, 174 AD2d 875; Harris v Kasperak, 172 AD2d 1062). Defendants demonstrated their entitlement to judgment as a matter of law by submitting proof in admissible form that the dog was gentle with children and had never previously bitten anyone or otherwise evidenced vicious propensities (see, Fox v Martin, supra; Harris v Kasperak, supra). In response, plaintiffs failed to tender evidentiary proof in admissible form to establish the existence of triable issues of fact. Evidence that the dog suffered from hip dysplasia does not, without more, raise an issue of fact with respect to defendants’ knowledge that their dog "habitually tended to do acts which might endanger persons” (Fontecchio v Esposito, 108 AD2d 780, 781). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Summary Judgment.) Present — Denman, P. J., Green, Lawton, Fallon and Doerr, JJ.