Dog Bite Personal Injury Case Dismissal Affirmed

In Lillo-Arouca v. Masoud, 2018 NY Slip Op 05150 (App. Div. 2d Dept. July 11, 2018), the court affirmed the dismissal of plaintiff’s amended complaint alleging personal injuries arising from a dog bite.

Here is the law, as summarized by the court:

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 . . . knew or should have known of such propensities” (Palumbo v Nikirk, 59 AD3d 691, 691; see Collier v Zambito, 1 NY3d 444, 446; Matthew H. v County of Nassau, 131 AD3d 134, 144; Henry v Higgins, 117 AD3d 796, 797). Vicious propensities include the propensity to do any act that might endanger the safety of the person and property of others (see Collier v Zambito, 1 NY3d at 446; Matthew H. v County of Nassau, 131 AD3d at 147; Claps v Animal Haven, Inc., 34 AD3d 715, 716). “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.

Applying the law, the court held that “defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing, through the deposition testimony of the defendant …, that the defendants were not aware, nor should they have been aware, that their dog had ever bitten anyone or exhibited any aggressive behavior.”

For their part, plaintiffs failed to raise a triable issue of fact. Specifically, the court held that the trial court properly refused to consider the affidavit of the plaintiffs’ son (a nonparty witness) since he was not properly disclosed as a notice witness in plaintiffs’ discovery responses, as well as “affidavits” of defendants’ neighbors (in that they “contained no jurat or other indication the neighbors had been sworn, and therefore were not in admissible form”).

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