Opinion
October 17, 1994
Appeal from the Supreme Court, Nassau County (Wager, J.).
Ordered that the judgment is affirmed, with one bill of costs.
In order to establish a prima facie case and to defeat the defendants' motions for summary judgment, the plaintiffs were required to present proof that the dog that bit the victim had a vicious propensity and that the dog's owners had knowledge of the dog's propensity or that a reasonably prudent person would have discovered it (see, Timpanaro v. Topping Riding School, 177 A.D.2d 570; Appel v. Charles Heinsohn, Inc., 91 A.D.2d 1029, 1030, affd 59 N.Y.2d 741). Here, the defendants demonstrated their entitlement to judgment in their favor as a matter of law (see, CPLR 3212 [b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562) by the submission of sufficient evidentiary proof that their dog did not possess a vicious propensity. In response, the plaintiffs failed to proffer any evidence to show the existence of triable issues of fact. Under these circumstances, summary judgment was properly granted to the defendants.
We find no merit to the contention that the trial court erred in prohibiting the plaintiffs from developing evidence of the inherently vicious propensity of the Akita breed (see, DeVaul v Carvigo Inc., 138 A.D.2d 669).
Moreover, the trial court did not err in refusing to allow the plaintiff to obtain discovery of certain information allegedly in the defendants' possession prior to disposing of the defendants' motions on the merits (see, CPLR 3212 [f]; Rothbort v. S.L.S. Mgt. Corp., 185 A.D.2d 806). Copertino, J.P., Pizzuto, Altman and Hart, JJ., concur.