Opinion
2018–02640 Index No. 15625/14
03-06-2019
LINA THAI WONG, Respondent, v. Joseph LARGANA, et al., Appellants.
Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De Lindsay of counsel), for appellants. Michael A. Cervini, Elmhurst, NY, for respondent.
Faust Goetz Schenker & Blee LLP, New York, N.Y. (Lisa De Lindsay of counsel), for appellants.
Michael A. Cervini, Elmhurst, NY, for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOSEPH J. MALTESE, BETSY BARROS, JJ.
DECISION & ORDERORDERED that the order is affirmed, with costs.
On the afternoon of July 24, 2014, the plaintiff, a mail carrier employed by the United States Postal Service, allegedly was attacked by the defendants' dog within the exterior ground of the defendants' residence in Queens. The plaintiff commenced this personal injury action against the defendants. The defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion, and the defendants appeal.
"To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog ... knew or should have known of such propensities" ( Palumbo v. Nikirk, 59 A.D.3d 691, 691, 874 N.Y.S.2d 222 ; see Petrone v. Fernandez , 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ; Collier v. Zambito , 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Ostrovsky v. Stern , 130 A.D.3d 596, 13 N.Y.S.3d 462 ). "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 ).
Here, in support of their motion for summary judgment, the defendants submitted, inter alia, the deposition testimony of the parties, which failed to establish the defendants' prima facie entitlement to judgment as a matter of law. The parties provided conflicting testimony as to the nature of the contact between the plaintiff and the dog on the day of the incident and the parties' prior observation of the dog's behavior and disposition. Accordingly, triable issues of fact exist as to whether the dog had vicious propensities and, if so, whether the defendants knew or should have known of such propensities (see Ostrovsky v. Stern , 130 A.D.3d at 596–597, 13 N.Y.S.3d 462 ; Merino v. Martinez , 63 A.D.3d 1123, 1124, 882 N.Y.S.2d 275 ; Dykeman v. Heht , 52 A.D.3d 767, 770, 861 N.Y.S.2d 732 ). Thus, we agree with the Supreme Court's determination to deny the defendants' motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
RIVERA, J.P., BALKIN, MALTESE and BARROS, JJ., concur.