THE FACT THAT THE DOG WAS A GUARD DOG AND THE NATURE OF THE ATTACK AND INJURIES RAISED A QUESTION OF FACT ABOUT DEFENDANTS’ KNOWLEDGE OF THEIR DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE (SECOND DEPT)

The Second Department determined the evidence of defendants’ dog’s vicious propensities was sufficient to warrant denial of defendants’ motion for summary judgment in this dog bite case:

… [T]he defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted on behalf of I.A. through affidavits which demonstrated that the defendants were unaware of any incident where the dog bit any person or animal, or acted aggressively, viciously, or ferociously, or attacked, harmed, or threatened to harm any person or animal … . In opposition, the plaintiffs submitted evidence demonstrating that the dog was kept, at least in part, as a guard dog, that the dog, unprovoked, bit I.A. on the face and would not let go until another boy pried open the dog’s mouth, and that I.A. suffered multiple severe lacerations to his face which required emergency surgery and left him with multiple scars. While the hospital records submitted by the plaintiffs were uncertified (see CPLR 4518[c]), hearsay evidence may be considered in opposition to a motion for summary judgment where, as here, it was not the only evidence upon which opposition to the motion was predicated … . … [T]he evidence was sufficient to raise a triable issue of fact as to whether the defendants knew or should have known that their dog had vicious propensities … . I.A. v Mejia, 2019 NY Slip Op 05757, Second Dept 7-24-19