Althoff v. Lefebvre

Full title: GEORGE ALTHOFF, Appellant, v. VIRGINIA LEFEBVRE, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 23, 1997

240 A.D.2d 604 (N.Y. App. Div. 1997)

658 N.Y.S.2d 695

Opinion

June 23, 1997

Appeal from the Supreme Court, Suffolk County (Doyle, J.).

Ordered that the order is affirmed, with costs.

The plaintiff was injured when a dog owned by the defendant jumped up on the plaintiff and caused him to fall. We agree with the Supreme Court that the plaintiff failed as a matter of law to demonstrate a viable strict liability claim against the defendant. Indeed, the defendant made a prima facie showing of her entitlement to judgment as a matter of law ( see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851), and the plaintiff failed to come forward with evidence establishing either the existence of a vicious propensity on the part of the dog or the defendant's knowledge of such a propensity ( see generally, Arcara v. Whytas, 219 A.D.2d 871; Bohm v. Nystrum Constr., 208 A.D.2d 668; Toolan v. Hertel, 201 A.D.2d 816; De Vaul v. Carvigo Inc., 138 A.D.2d 669).

Moreover, to the extent that the plaintiff's single cause of action can also be construed as a claim sounding in common-law negligence ( but see, CPLR 3014), we find that the defendant's demonstrated lack of knowledge of a propensity on the part of her dog to jump up on people defeats this claim ( see generally, Young v. Wyman, 159 A.D.2d 792, affd 76 N.Y.2d 1009; Hyde v. Clute, 235 A.D.2d 909; Staller v. Westfall, 225 A.D.2d 885; Nilsen v. Johnson, 191 A.D.2d 930). Contrary to the plaintiff's contention, liability cannot be premised solely on the fact that the defendant left the dog unrestrained.

The plaintiff's remaining contentions are without merit.

Bracken, J.P., Santucci, Goldstein and Luciano, JJ., concur.