Plaintiff was injured after her son-in-law’s dog knocked her down. Supreme Court (Kings Cty.) denied defendant’s, and granted plaintiff’s, respective motions for summary judgment. (See Bannout v. McDaniels, 9920/09 (NYLJ 1202479668419, at *1)).
The court denied defendant’s motion for summary judgment – which was premised on plaintiff’s failure to offer evidence that an “insufficient handrail” proximately caused her accident – because defendant presented only “conclusory allegations regarding the sufficiency of [plaintiff’s] proof.” Under CPLR 3212, “[w]hether … plaintiff has evidentiary support for her allegations is irrelevant” to the initial summary judgment inquiry, and a defendant “may not expect to succeed on a prayer for summary judgment by merely pointing to evidentiary gaps in [plaintiff’s] proof”.
The court, however, granted plaintiff’s motion for summary judgment on the issue of liability. Initially, the court deemed the plaintiff’s pleadings – which alleged negligence, rather than strict liability – to be amended to conform with plaintiff’s proof. It reasoned that “summary judgment may properly be awarded on the unpleaded cause of action if the proof supports such a cause and the opposing party was not misled or prejudiced.” Such was the case here, as plaintiff’s proof supported a strict liability cause of action, and defendant received clear notice that plaintiff was proceeding on that theory.
“When harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule … of strict liability” where the animal’s “owner knows or should have known of the animal’s vicious propensities”. It doesn’t matter whether the animal is “dangerous or ferocious”, but rather whether it “reflects a proclivity to act in a way that puts others at risk of harm … albeit only when such proclivity results in the injury giving rise to the lawsuit”. “A known tendency to attack others, even in playfulness, as in the case of an overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act”.
Plaintiff established her prima facie case through testimony of defendant and his wife (plaintiff’s daughter) indicating that the dog “had a continuing proclivity to jump on guests since she was a puppy” and that defendant and his wife were “fully aware of [the dog’s] propensities and took steps to prevent her from jumping on guests”.