In Gervais v. Laino (111537/10, NYLJ 1202636603421, at 1, App. Div., 1st, decided December 31, 2013), the Appellate Division, First Department reversed a lower court's order denying a defendant's motion for summary judgment in a dog bite case. The relevant facts are as follows: the plaintiff brought a lawsuit against a dog owner (the defendant) after she was allegedly scratched or bitten in the face by the dog; the plaintiff stated that she was walking in Central Park when she saw the defendant's dog, whose hind paw was caught in a fence, wailing in pain; the plaintiff claimed that she was leaning over the dog and deciding what to do, when the dog lunged at her and scratched or bit her face (however, both the hospital records and police report state that plaintiff was attempting to free the dog); the defendant dog owner, who was present and rushing over to her dog, stated that the plaintiff wrapped her arms around the dog's head and neck.
support of the motion for summary judgment, the defendant submitted evidence
of her dog's gentle disposition and her lack of knowledge of any
vicious propensities, including four affidavits from neighbors and other
dog owners who know the defendant's dog, as well as test results indicating
that the dog was awarded the American Kennel Club's Good Citizen
certification. In opposition, the plaintiff submitted deposition testimony
from the defendant's neighbor who stated that, prior to this incident, the
neighbor's two dogs and defendant's dog, had a history of growling at
each other and had been involved in two scuffles, one where one of the
neighbor's dogs bit defendant's dog and one or possibly two where
defendant's dog was the aggressor but she retreated when the neighbor
reprimanded her. The neighbor further testified that she complained to
defendant about her dog's behavior, but acknowledged that defendant's
dog was not aggressive toward her and had never bitten or hurt her dogs.
After the discovery process, the defendant made a motion for summary judgment, seeking to dismiss the plaintiff's lawsuit on the theory that no triable issues of fact exist for trial. The trial court denied the defendant's motion, and the plaintiff appealed. On appeal, the Appellate Division reversed the trial court decision, stating the following: "[i]n order to establish liability, there must be some evidence that the
dog demonstrated vicious propensities prior to the incident...[t]he only case with facts at all
comparable to those here is Rosenbaum v. Rauer, 80 AD3d 686 (2nd Dept
2011), in which the plaintiff was also injured when trying to assist a
dog who was caught in a fence. In Rosenbaum, however, there was evidence
that the defendants' dog 'had frequently…growled, shown its teeth, and
snapped at the plaintiffs'...[a]ccordingly,
the Second Department found that there was a triable issue of fact as
to the animal's vicious propensities when it bit the injured plaintiff."
The Court then held the following: "[n]o court has found that a dog's growling at one or two other dogs is
sufficient to establish vicious propensities, and the Third Department
has specifically held that growling and baring of teeth, even at people,
is insufficient to give notice of a dog's vicious propensities...[h]ere, the evidence,
which establishes only that defendant's dog growled at two other dogs,
one of whom had bitten her, and never growled or bared her teeth at any people, is
insufficient to raise an issue of fact as to the dog's vicious
propensities. Accordingly, defendant is entitled to summary judgment
dismissing the complaint."
Salvatore R. Marino, Esq.