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Sherman v. Torres

35 A.D.3d 436, 825 N.Y.S.2d 253, 2006 N.Y. Slip Op. 09217

View New York Official Reports version

Supreme Court, Appellate Division, Second Department, New York.
Jo-Ann SHERMAN, etc., appellant,
v.
Mary TORRES, et al., respondents.
Dec. 5, 2006.

Background: Dog bite victim sued dog owners to recover damages for personal injuries. The Supreme Court, Orange County, Horowitz, J., granted a defense motion for summary judgment dismissing the complaint, and the victim appealed.

Holding: The Supreme Court, Appellate Division, held that genuine issues of material fact existed as to whether owners had prior knowledge of the dog’s alleged vicious propensities.

Affirmed as modified.

West Headnotes

[1] KeyCite Notes

28 Animals
28k66 Injuries to Persons
28k66.5 Dogs
28k66.5(2) k. Vicious Propensities and Knowledge Thereof. Most Cited Cases

Where a pet owner knows, or should know, of his or her dog’s vicious propensities, he or she is strictly liable for the harm the animal causes as a result of those propensities.

[2] KeyCite Notes

28 Animals
28k66 Injuries to Persons
28k66.2 k. Vicious Propensities and Knowledge Thereof. Most Cited Cases

Knowledge of animal’s vicious propensities may be established by proof of prior acts of a similar kind of which the owner had notice.

[3] KeyCite Notes

28 Animals
28k66 Injuries to Persons
28k66.2 k. Vicious Propensities and Knowledge Thereof. Most Cited Cases

Animal attack that is severe and unprovoked is an indicia of vicious propensities.

[4] KeyCite Notes

228 Judgment
228V On Motion or Summary Proceeding
228k181 Grounds for Summary Judgment
228k181(15) Particular Cases
228k181(33) k. Tort Cases in General. Most Cited Cases

Genuine issues of material fact as to whether dog owners had prior knowledge of the dog’s alleged vicious propensities precluded summary judgment as to whether they could be held liable in strict liability for an infant dog bite victim’s injuries.

*254 Benjamin Ostrer & Associates, P.C., Chester, N.Y. (Michael D. Meth, Stevor W. Hannigan, and Stewart Rosenwasser of counsel), for appellant.
Patrick Colligan (Carol R. Finocchio, New York, N.Y. [Mary Ellen O’Brien] of counsel), for respondents.

GABRIEL M. KRAUSMAN, J.P., WILLIAM F. MASTRO, ROBERT A. SPOLZINO, and JOSEPH COVELLO, JJ.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Orange County (Horowitz, J.), dated March 10, 2005, as granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was to dismiss the second cause of action sounding in strict liability, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs.

In May 2003, while visiting the home of the defendants, then 10-year-old Ryan Sherman sustained injuries after being bitten by the defendants’ dog.

[1] [2] [3] Where a pet owner knows, or should know, of his or her dog’s vicious propensities, he or she is strictly liable “for the harm the animal causes as a result of those propensities” ( Collier v. Zambito, 1 N.Y.3d 444, 448, 775 N.Y.S.2d 205, 807 N.E.2d 254; see Bard v. Jahnke, 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463). “Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice” ( id. at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). Similarly, an attack that is severe and unprovoked is an indicia of vicious propensities ( see Moriano v. Schmidt, 133 A.D.2d 72, 518 N.Y.S.2d 416).

[4] The defendants satisfied their prima facie burden of demonstrating their entitlement to judgment as a matter of law. In opposition, the plaintiff raised a *255 triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572) regarding the defendants’ prior knowledge of the dog’s alleged vicious propensities, and thus, whether the defendants could be held liable in strict liability for the infant plaintiff’s injuries ( see Bard v. Jahnke, supra; Francis v. Curley Family Ltd. Partnership, 33 A.D.3d 852, 823 N.Y.S.2d 475; cf. Longstreet v. Peltz, 33 A.D.3d 673, 821 N.Y.S.2d 899).

However, as the plaintiffs cannot recover on their first and third causes of action sounding in common-law negligence ( see Bard v. Jahnke, supra at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463; Morse v. Colombo, 31 A.D.3d 916, 819 N.Y.S.2d 162), those causes of action were properly dismissed.

N.Y.A.D. 2 Dept.,2006.
Sherman v. Torres
35 A.D.3d 436, 825 N.Y.S.2d 253, 2006 N.Y. Slip Op. 09217


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