Collier v. Zambito , 750 N.Y.S.2d 249 ( 2002 )

Appeal from that part of an order of Supreme Court, Cayuga County (Corning, J.), entered March 26, 2002, that denied defendants’ motion for summary judgment dismissing the complaint.

It is hereby ordered that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. Plaintiff commenced this action seeking damages for injuries sustained by her then 12-year-old son when he was bitten by defendants’ dog while a guest at defendants’ home. In support of their motion, defendants submitted their deposition testimony wherein they testified that their dog barked and became excited when they had visitors at their home but had no history of biting or behaving in a threatening manner toward anyone. Defendants thereby met their initial burden by tendering proof in admissible form establishing that they had no knowledge that their dog had vicious propensities, and plaintiff failed to raise an issue of fact whether defendants knew or should have known of their dog’s alleged vicious propensities (see Lynch v Nacewicz, 126 AD2d 708, 708-709; see also Elmore v Wukovits, 288 AD2d 875; Plennert v Abel, 269 AD2d 796).

The dissent properly states that a dog owner may be liable for injuries caused by the dog if the owner had prior knowledge of the dog’s vicious propensities (see e.g. Anderson v Carduner, 279 AD2d 369; Mitura v Roy, 174 AD2d 1020). However, the injuries for which recovery is sought must arise from such propensities. Here, there is no evidence that the dog had a propensity to bite or otherwise behave in a threatening manner, and thus there can be no liability (see Plennert, 269 AD2d 796).

All concur except Green, J.P., and Gorski, J., who dissent and vote to affirm in the following memorandum.