Carter v. Metro North Associates , 680 N.Y.S.2d 239 ( 1998 )

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered April 17, 1998, denying defendants’ motion for summary judgment, and, upon searching the record, granting summary judgment to the plaintiff on the issue of liability, reversed, on the law, without costs, judgment in favor of plaintiff vacated, defendants’ motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendants dismissing the complaint.

Before a pet owner, or the landlord of the building in which the pet lives, may be held strictly liable for an injury inflicted by the animal, the plaintiff must establish both (1) that the animal had vicious propensities and (2) that the defendant knew or should have known of the animal’s propensities (see, Vavosa v Stiles, 220 AD2d 363; Gibbs v Grenadier Realty Corp., 173 AD2d 171). Here, although it was established that plaintiff, a resident of a building owned and managed by the defendants, was attacked and bitten on the face by a pit bull owned by another tenant, there was no evidence indicating that the dog had ever attacked any other individual, or previously displayed any vicious behavior. The IAS Court erred in circumventing the requirement for evidence concerning the particular animal by purporting to take judicial notice of the vicious nature of the breed as a whole.

“A court may only apply judicial notice to matters ‘of common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof ” (Dollas v Grace & Co., 225 AD2d 319, 320, quoting Ecco High Frequency Corp. v Amtorg Trading Corp., 81 NYS2d 610, 617, affd 274 App Div 982). The fact at issue must be “ ‘generalized knowledge as [is] so notorious as not to be the subject of reasonable dispute’ ” (Abrevaya v Palace Theatre & Realty Co., 25 Misc 2d 600, 603 [Sup Ct, NY County 1960], quoting Model Code of Evidence rule 801).

On the subject of the propensities of pit bull terriers as a breed there are alternative opinions that preclude judicial notice such as was taken by the court. While many sources, including the authorities relied upon by the IAS Court, assert the viciousness of pit bulls in general, numerous other experts suggest that, at most, pit bulls possess the potential to be trained to behave viciously (see, e.g., Green, It’s Unfair to Categorize Any Dog Breed As A Biter, Seattle Times, Aug. 17, 1997, at G5; Kuntz, Word for Word/Rover Rage, New York Times, June 7, 1998, section 4, at 7, col 1; Foote, That is Not A Bad Dog — That’s a Splendid Dog, 23 Smithsonian Mag 60-71 [1992]).

Furthermore, scientific evidence more definitive than articles discussing the dogs’ breeding history is necessary before it is established that pit bulls, merely by virtue of their genetic inheritance, are inherently vicious or unsuited for domestic living, such as, for instance, wolves and leopards would be (but see, Plue v Lent, 146 AD2d 968, 969 [3d Dept]). No statistical analysis is offered to demonstrate that a high percentage of the total number of pit bulls has engaged in violent incidents.

Even accepting that the evidentiary submissions created an issue of fact as to whether this particular animal had vicious propensities, none of the evidence supports a finding that the landlord had, or should have had, knowledge of any such propensities. In particular, the claimed admission of the dog’s owner to the plaintiff immediately before the incident, that the dog had become aggravated due to children playing in the vicinity, provides no support for an inference that the landlord knew of such propensities. Nor does evidence that the landlord’s agents knew of the dog’s existence and presence in the building support the inferential leap to knowledge on the part of the landlord that the dog had vicious propensities.

The defendants’ failure to enforce the “No Pets” provision of the lease cannot be characterized as a proximate cause of plaintiff’s injuries. There is no causal connection between the lease violation and plaintiff’s injuries, particularly in the absence of any demonstrated reliance on the lease clause by the plaintiff.

In response to defendants’ motion, it was incumbent upon plaintiff to submit evidentiary proof sufficient to raise an issue of fact (see, Machinery Funding Corp. v Loman Enters., 91 AD2d 528). In the absence of sufficient evidence to support plaintiff’s claim, defendants’ motion for summary judgment dismissing the complaint should have been granted. Concur— Tom, J. P., Andrias and Saxe, JJ.