This case is being heard in the Second Judicial Department, Appellate Division of the Supreme Court of the State of New York. The appellant in the case is Debra Roche. She is being represented by the law offices of Frankfort & Koltun, from Deer Park, New York. Her counsel is Robert D. Frankfort. The respondents in the case are Steven Bryant et al. He is represented by the law offices of DeSena & Sweeney, LLP from Hauppauge, New York. The counsel for the respondents is Shawn P. O’Shaughnessy. The judges that are present for this case are Peter B. Skelos, J.P., Ruth C. Balkin, Joseph Covello, and Leonard B. Austin JJ.
The plaintiff of the case is appealing an order that was made by the Supreme Court of Suffolk County that granted a motion for summary judgment in favor of the defendant.
In order to recover for damages in a case that involves a dog bite a plaintiff has to prove that the dog in question had vicious tendencies before the attack occurs. Additionally the plaintiff must prove that the owner of the dog knew that the animal had these aggressive and vicioustendencies.
In this case, the defendants have presented facts that show that they were not aware that their dog had any type of vicious tendencies. They have shown that there was no reason for them to think that their dog would attack a person as he had never bitten anyone before and had not shown any type of aggressive behavior in the past.
The defendants testified that they had owned the dog for the past six years. The dog resided in their home with their small children and there had never been any incidents. Furthermore, the plaintiffs state that the dog had never growled at, snarled at, or bared its teeth or acted aggressively towards anyone prior to this incident.
The dog was confined to the defendant’s garage at times, but this does not serve as a reason for liability as the dog was not confined to the space because of fear by the owners that it would harm their guests.
The plaintiff did not raise any triable issues of fact during the previous hearing. The plaintiff stated that they had heard that the dog had vicious tendencies. However, this “here say” is not admissible in court. This was the only evidence that the plaintiff submitted in the case.
The original complaint made against the defendants alleged common law negligence. This cause of action was dismissed by the Supreme Court as the state of New York does not recognize common law negligence in regard to recovering damages from injuries that were caused by a domestic animal.
After reviewing the case and the previous ruling made by the Supreme Court of Suffolk County, it is found that the ruling was correct. The court rules that the original order from the court is affirmed with costs to the appellant. The remaining contentions that are made by the plaintiff are all without merit and are dismissed as well.
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