Plaintiff Did Not Raise an Issue of Fact Re: Vicious Propensities of Defendants’ Dog

The Second Department determined plaintiff failed to raise a question of fact about the vicious propensities of a dog which was alleged to have bitten plaintiff:

“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” … . “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, [the fact that the dog was kept as a guard dog,] and a proclivity to act in a way that puts others at risk of harm” … .

The defendants separately established their respective prima facie entitlement to judgment as a matter of law on their respective motions by demonstrating, through their deposition testimony, as well as the plaintiff’s, that they “were not aware, nor should they have been aware, that this dog had ever bitten anyone or exhibited any aggressive behavior” … . Indeed, the defendants testified that they had no knowledge that the dog involved in this alleged attack on the plaintiff had ever growled at, chased, bitten, or attacked anyone prior to the subject incident … .

The plaintiff failed to raise a triable issue of fact in opposition. Henry v Higgins, 2014 NY Slip Op 03489, 2nd Dept 5-14-14