Palumbo v. Nikirk
Full Opinion (html_with_citations)
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Iannacci, J.), dated March 18, 2008, which granted the defendantsâ motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, a mail carrier, sustained injuries when he allegedly was bitten and attacked by a dog on the front steps of the defendantsâ house as he attempted to deliver the mail. The plaintiff, who crossed over the defendantsâ lawn and driveway from the house next door, and whose view of the dog was obstructed by a bush, did not see the dog or hear it bark until he opened the lid of the mailbox and was bitten.
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, or person in control of the premises where the dog was, knew or should have known of such propensities (see Bard v Jahnke, 6 NY3d 592 [2006]; Collier v Zambito, 1 NY3d 444, 448 [2004]; Christian v Petco Animal Supplies Stores, Inc., 54 AD3d 707, 708 [2008]; Claps v Animal Haven, Inc., 34 AD3d 715, 716 [2006]). â âVicious propensities include the âpropensity to do any act that might endanger the safety of the persons and property of others in a given situationâ â (Collier v Zambito, 1 NY3d at 446, quoting Dickson v McCoy, 39 NY 400, 403 [1868]; see Claps v Animal Haven, Inc., 34 AD3d at 716).
Here, the defendants established their prima facie entitlement to judgment as a matter of law by presenting evidence that the dog had never bitten, jumped, or growled at anyone prior to the incident in question, nor had the dog exhibited any other aggressive or vicious behavior (see Christian v Petco Animal Supplies Stores, Inc., 54 AD3d at 708; Wilson v Whiteman, 237 AD2d 814, 814-815 [1997]). In opposition, the plaintiff