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The complainant mother together with her victim daughter, the victim’s brother and the victim’s father were visiting the home of dog owner when his dog bit the victim. The mother commenced the negligence action to recover damages resulting from injuries sustained by the victim as a result of the dog bite. After issue was joined, the dog owner moved for summary judgment dismissing the complaint against him, contending, among other things, that he had no notice of the dog’s vicious propensities. Supreme Court found that the record presented a triable issue of fact and denied the dog owner’s motion.
A landlord may be liable for the dog attack by a dog kept by a tenant if the landlord has actual or constructive knowledge of the animal’s vicious propensities and maintains sufficient control over the premises to require the animal to be removed or confined. The dog owner has limited his arguments on appeal to the issue of whether he knew or should have known that the dog had vicious propensities. In support of his motion, the dog owner submitted the transcripts of depositions taken of himself, the dog owner and the dog owner’s brother and housemate. The dog owner testified that he had no prior knowledge of any aggressive behavior exhibited by the dog. The mother testified that the dog had previously acted aggressively toward their infant son the dog owner’s home. The victim’s brother and resident at the property testified that, although he did not observe the dog’s interaction with the child, he observed the dog owner restraining the dog immediately after he heard a yip or bark and that neither owner were present that day. On the other hand, the dog owner denied that the incident occurred, that he had ever witnessed the dog act aggressively prior to the dog bite incident or that he ever told anything about the dog acting aggressively. The dog owner also testified that he was unaware of the alleged incident and that, to his knowledge; the dog owner had never been told by anyone that the dog had acted aggressively at any time before the victim was bitten.
As a whole, the testimony submitted by the dog owner established that he was not present at the property at the time of the alleged incident or at any time that the dog was present on the premises. The admissible evidence also demonstrated that the dog owner was never informed about the incident. It was sufficient to satisfy the dog owner’s threshold burden of demonstrating that he had no actual or constructive knowledge of the dog’s vicious propensities, thereby shifting the burden to the dog owner to come forward with evidence in admissible form demonstrating a triable issue of fact. The dog owner failed to do so.
In opposition to the dog owner’s motion, the victim argued that, based upon the evidence submitted, the totality of the circumstances were sufficient to raise a triable issue of fact as to whether the dog owner knew, or should have known, about the dog’s vicious propensities. While the victim correctly points out that the record demonstrates the existence of a question of fact as to whether the dog owner was aware of the presence of the dog, such awareness will not support the inference that the dog owner knew it had vicious propensities.
Thus, inasmuch as the documents and testimony presented do not contain sufficient reliability to justify their admission into evidence under the exception to the hearsay rule, they are insufficient to meet the victim’s shifted burden of raising a triable issue of fact. Summary judgment was awarded to the dog owner and the complaint against him was dismissed.
No one intends to hurt anyone and be sued for it. Animals can be as caring as human but they still have their limitations in terms of reacting to how people around them treat them. If you need to be represented by a NY Dog Bite Attorney or a New York Dog Attack Lawyer, call the office of Stephen Bilkis and Associates.