In Ciliotta v. Ranieri, a dog bite case, the Supreme Court, Kings County, dismissed plaintiff’s case, finding that there was insufficient evidence that the dog had “vicious propensities” as required by New York law.
It all started with a friendly discussion between neighbors. Involving thrown dog poo and choking:
On April 14, 2011, Defendant Nicole Ranieri (“Ms. Ranieri”) was walking her dog, with her friend and her friend’s two children. Ms. Ranieri stopped on the sidewalk in front of Plaintiff’s house. Plaintiff testified at his Deposition that while standing in his driveway, he saw Ms. Ranieri with her dog on a leash. Plaintiff further testified that Ms. Ranieri initiated a conversation with him by asking him what he was looking at and if he had a problem. A verbal altercation that lasted for about 10 minutes ensued. Thereafter, Plaintiff went to the side of his house to get his hose to water the grass.
Plaintiff testified that Ms. Ranieri and her dog may have gotten wet while he was watering the grass. Ms. Ranieri then walked down the block. Several minutes later, Ms. Ranieri came back down the block, threw a bag of dog excrement at Plaintiff and ran up the block. Plaintiff picked up the bag and followed Ms. Ranieri. Shortly thereafter, Ms. Ranieri’s dog bit Plaintiff. Ms. Ranieri alleges that her dog came to her defense after Plaintiff chased and started to choke her. Plaintiff maintains that he does not remember choking Ms. Ranieri, but remembers approaching and touching her.
The defendant, Ranieri, filed a motion for summary judgment seeking dismissal of the case, on the grounds that plaintiff “cannot show that she knew or should have known that her dog had vicious propensities.” The court agreed.
The court summarized the relevant law as follows:
It is well established that the owner of a domestic animal is strictly liable for harm caused by that animal, if the owner knows or should have known of the animal’s vicious propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Knowledge of vicious propensities may be established by proof of prior acts of a similar kind of which the owner had notice. Evidence tending to demonstrate an animal’s vicious propensities may include a prior attack, a tendency to growl, snap, or bare its teeth, the manner in which the animal was restrained, the fact that the animal was kept to guard the premises, and a proclivity to act in a way that puts others at risk of harm. New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal. (Emphasis added.)
Therefore, in order to be entitled to summary judgment, the defendant was required to “show that she did not have actual or constructive knowledge of the dog’s vicious propensity prior to the incident.”
First, the court held that the defendant established her prima facie entitlement to summary judgment:
Here, as in Christian and Galgano [two Second Department decisions], Ms. Ranieri presented evidence which showed that, prior to the subject incident, her dog did not have vicious propensities. Ms. Ranieri’s Deposition testimony and the affidavits submitted by Ms. Ranieri’s parents show that the subject dog did not bite anyone prior to Plaintiff and did not otherwise display any vicious propensities.
Plaintiff also failed to raise a triable issue of fact. Plaintiff did not provide any testimony showing that Ranieri’s dog had vicious propensities. The court was also unpersuaded by a New York City Department of Health and Mental Hygiene Report purportedly showing that the dog had previously bitten someone, finding that the report was not competent evidence (as it had not been certified or authenticated), failed to provide enough information regarding the prior incident, and apparently involved a different dog.
Finally, the court denied plaintiff’s cross-motion for summary judgment, pointing to the fact that the dog bit the plaintiff while protecting its master:
[T]he evidence shows that the subject dog bit Plaintiff as a reaction to Plaintiff’s physical proximity and manner towards its owner, Ms. Ranieri. Dogs are universally recognized as a man’s (in this case a woman’s) best friend. This designation necessarily indicates that a dog will act towards its owner in a manner consistent with that of a close companion. Dogs are known to be very protective of their owners and often come to their defense when they believe that their owners are about to be, or are threatened by others. This case is not a situation where the dog, without any provocation displayed aggressive behavior. It is undisputed that the dog bit Plaintiff after Plaintiff, admittedly approached and touched Ms. Ranieri.