Opinion
April 26, 1991
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: In this action commenced by plaintiffs to recover for personal injuries sustained by the infant plaintiff when defendant's Irish Setter dog allegedly bit her about her face, defendant moved for summary judgment dismissing the complaint. Supreme Court denied his motion. We reverse.
An owner of a domestic animal is not liable for injuries caused by the animal unless he knows or should have known of its vicious propensities (see, Muller v. McKesson, 73 N.Y. 195; DeVaul v Carvigo Inc., 138 A.D.2d 669, appeal dismissed 72 N.Y.2d 914, lv denied 72 N.Y.2d 806; Russell v. Lepre, 99 A.D.2d 489; Wheaton v Guthrie, 89 A.D.2d 809, 810; O'Connor v. Larson, 74 A.D.2d 734, 735). Defendant demonstrated his entitlement to judgment in his 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 evidentiary proof in admissible form that his dog did not possess vicious propensities.
In response, plaintiffs failed to tender evidentiary proof in admissible form to show the existence of triable issues of fact. In opposing defendant's motion, plaintiffs submitted their deposition testimony in which they essentially concurred with defendant's assessment that the dog was friendly and not vicious. Although plaintiff Brian Harris averred that several neighbors told him that they would "sign sworn statements" to the effect that the dog was "wild", "uncontrollable" and "dangerous", those conclusory assertions are without evidentiary value and thus unavailing (see, Zuckerman v. City of New York, supra). Plaintiffs failed either to proffer those affidavits in opposition to defendant's motion or to provide an acceptable excuse for their failure to do so. Moreover, that evidence would not, without more, raise an issue of fact with respect to defendant's knowledge that his dog "habitually tended to do acts which might endanger persons" (Fontecchio v. Esposito, 108 A.D.2d 780, 781).