BARKING AND STRAINING AT THE LEASH CONSTITUTE NORMAL CANINE BEHAVIOR AND DID NOT SERVE TO MAKE DEFENDANTS AWARE OF THE DOG’S ALLEGED VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendants’ motion for summary judgment in this dog bite case was properly granted. The fact that defendants were aware the dog had barked at plaintiff and her dog and strained at his leash did not demonstrate defendants were aware of defendants’ dog’s vicious propensities:

Here, the … defendants … established their prima facie entitlement to judgment as a matter of law by demonstrating that the dog did not have vicious propensities and, in any event, that they neither knew nor should have known that the dog had vicious propensities … . In opposition, the plaintiff failed to raise a triable issue of fact regarding whether the dog had vicious propensities. Contrary to the plaintiff’s contention, her deposition testimony that the dog barked at her and her dog and that the dog strained its leash toward her dog was insufficient to raise a triable issue of fact as to whether it had vicious propensities … . Moreover, regardless of whether the Beach Haven defendants were aware of the behavior the plaintiff described in her testimony, it was insufficient to raise a triable issue of fact with respect to the Beach Haven defendants’ knowledge of the dog’s allegedly vicious propensities. The dog’s actions in barking at another dog and pulling its leash are “consistent with normal canine behavior” … . Bukhtiyarova v Cohen, 2019 NY Slip Op 03945, Second Dept 5-22-19