Opinion
2018–07525 (Index No. 22192/11)
04-03-2019
Tyhime DELOACH, respondent, v. Lucille NICHOLSON, appellant.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum and Joel A. Sweetbaum ], of counsel), for appellant. Joel M. Gluck, New York, NY, for respondent.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum and Joel A. Sweetbaum ], of counsel), for appellant.
Joel M. Gluck, New York, NY, for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Devin P. Cohen, J.), dated February 7, 2018. The order denied the defendant's motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
On September 30, 2008, at approximately1:30 p.m. to 2:00 p.m., the plaintiff, a UPS delivery person, was bitten by a dog at a premises owned by the defendant and her two brothers, Winfield Nicholson and Wharton Nicholson. The property was a two-family, two-story house, and the defendant resided in the first floor unit with Wharton. Winfield resided in the second floor unit with his wife, Yvonne Nicholson, and their children. The dog was owned by Yvonne and resided on the second floor.
The plaintiff commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending that the dog did not have vicious propensities and that she was unaware of the dog's alleged vicious propensities. The Supreme Court denied the motion, and the defendant appeals.
"Strict liability can ... be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]" ( Matthew H. v. County of Nassau, 131 A.D.3d 135, 144, 14 N.Y.S.3d 38 ; see Cruz v. Stachowski, 142 A.D.3d 1326, 1328, 38 N.Y.S.3d 298 ; see also Palumbo v. Nikirk, 59 A.D.3d 691, 874 N.Y.S.2d 222 ). "Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" ( Bard v. Jahnke, 6 N.Y.3d 592, 596–597, 815 N.Y.S.2d 16, 848 N.E.2d 463 [internal quotation marks omitted] ). "Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" ( Hodgson–Romain v. Hunter, 72 A.D.3d 741, 741, 899 N.Y.S.2d 300 ; see Bard v. Jahnke, 6 N.Y.3d at 597, 815 N.Y.S.2d 16, 848 N.E.2d 463 ; Velez v. Andrejka, 126 A.D.3d 685, 686, 5 N.Y.S.3d 212 ).
The defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the dog did not have vicious propensities and, in any event, if it did, that she neither knew nor should have known that the dog had vicious propensities (see Collier v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Cintorrino v. Rowsell, 163 A.D.3d 919, 920, 82 N.Y.S.3d 481 ; Lillo–Arouca v. Masoud, 163 A.D.3d 646, 647, 79 N.Y.S.3d 651 ; Carroll v. Kontarinis, 150 A.D.3d 960, 960–961, 54 N.Y.S.3d 448 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
BALKIN, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.