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Defendants Appeal Summary Judgment in Wrongful Death Case


Eleanor Maher is the respondent for this case. She is represented by the law offices of Dalli & Marino, LLP from Hempstead, New York. Her counsel is John Dalli. The appellants and defendants in this case are the C & A Auto Parts Inc. et al. They are represented by the law offices of Lester Schwab Katz & Dywer, LLP, from New York, New York. Their counsel is Steven B. Prystowsky. The case is being heard in the Second Judicial Department, Appellate Division of the Supreme Court of the State of New York. The judges overseeing the case are Lawrence J. Bracken as acting P.J., Myriam J. Altman, Fred T. Santucci, and Anita R. Florio, JJ.

The defendants, C & A Auto Parts Inc., are appealing an order made by the Supreme Court of Queens County. The original order in the case was made by Judge Berke and dated the 16th of December, 1999. The order denied a motion for a summary judgment to dismiss the complaint and all cross claims that were made against them.

Case Background

The plaintiff initiated this action against the defendant inter alia claiming strict liability and common law negligence against the defendants in order to recover damages for her husband’s death that was caused by a dog bite that he received from a dog that was owned and kept on the premises that are controlled by the appellants.

The bite that the decedent received was two small puncture wounds on his hand. Tragically, these bites became infected and he died a couple of days later as a result of this infection as his spleen had been removed previously and the infection led to septic shock.

Case Discussion and Decision

In order to recover in strict liability for a dog bite, the plaintiff must be able to show that the dog that made the attack had previous vicious inclinations and the owner of the dog knew or should have known about these vicious inclinations. It is necessary for the plaintiff to show that the owners should have been aware of the negative inclinations of their pet.

The appellants showed through prima facie that they were entitled to a summary judgment in this case. The plaintiff did not come forward with any proof to show that the defendants had known that the dog had previous violent inclinations. In addition, the plaintiff did not show any reason for negligence on the part of the appellant.

For the reasons given, the court finds that the Supreme Court of Queens County made an error by not grangint summary judgment in this case. The court orders that the previous order in this case are reversed. The order is reversed with costs. The motion for a summary judgment in favor of the defendants is granted. All of the claims and cross claims that have been made against the defendants are dismissed. The action that remains against the remaining defendants is severed as well.

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