Opinion
2007-613 S C.
Decided March 5, 2008.
Appeal from a judgment of the District Court of Suffolk County, Fourth District (Richard I. Horowitz, J.), entered January 29, 2007. The judgment, after a nonjury trial, dismissed the action.
Judgment affirmed without costs.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
In this small claims action, plaintiff sought to recover the cost of her five-month-old Cockapoo, which was killed by defendant's Rottweiler on January 19, 2006.
Plaintiff was not entitled to recover in strict liability for the harm caused by defendant's dog, because she did not establish that defendant's dog had vicious propensities and that defendant knew or should have known of the dog's vicious propensities ( see Collier v Zambito, 1 NY3d 444). Contrary to plaintiff's contentions on appeal, a court may not take judicial notice of the inherent ferocity of any particular type or breed of domestic animal ( see Roupp v Conrad, 287 AD2d 937; DeVaul v Carvigo, 138 AD2d 669). Although in some cases involving injury caused by a domestic animal, a plaintiff may assert negligence as a theory of liability ( see Delmonte v Tighe, 2 AD3d 668; Espejo v Reuven Holding, 308 AD2d 373), plaintiff herein did not prove at trial any negligence on defendant's part. Accordingly, there is no basis for this court to reverse the judgment dismissing the action, since substantial justice was done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807).
McCabe, J.P., Tanenbaum and Molia, JJ., concur.