STEPHANIE OLSEN, Individually and as Parent of AIRIANA RONEY, an Infant, Appellant,
ALAN CAMPBELL, Respondent.
Calendar Date: March 29, 2017
Abdella Law Offices, Gloversville (Robert Abdella of
counsel), for appellant.
Gozigian, Washburn & Clinton, Cooperstown (Edward
Gozigian of counsel), for respondent.
Before: Peters, P.J., McCarthy, Egan Jr., Mulvey and Aarons,
MEMORANDUM AND ORDER
from an order of the Supreme Court (Ferreira, J.), entered
June 27, 2016 in Schoharie County, which granted
defendant's motion for summary judgment dismissing the
April 2014, plaintiff's three-year-old daughter was
bitten on the face by defendant's dog, a 12-year-old
Siberian husky. The attack took place while the child was
visiting her grandmother, defendant's girlfriend, at
defendant's premises. Plaintiff commenced this action to
recover damages for the child's injuries. Defendant
answered and thereafter moved for summary judgment dismissing
the complaint. Supreme Court granted defendant's motion
finding that defendant met his burden of proving that he had
no prior knowledge of the dog's vicious propensities and
plaintiff failed to raise a triable issue of fact. Plaintiff
motion for summary judgment, the movant has the "burden
to establish 'a prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of
fact'" (William J. Jenack Estate Appraisers
& Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475
, quoting Alvarez v Prospect Hosp., 68 N.Y.2d
320, 324 ; see CPLR 3212 [b]). In the context
of a defendant's motion for summary judgment in a dog
bite or attack case, the "defendant bears an initial
burden to demonstrate that, prior to the incident giving rise
to the lawsuit, he or she was without knowledge that the
animal possessed any vicious or dangerous propensities"
(Gannon v Conti, 86 A.D.3d 704, 705 ; see
Miletich v Kopp, 70 A.D.3d 1095, 1095 ). Only if
the defendant meets this initial burden, does the burden then
shift to the plaintiff "to raise a triable question of
fact as to whether defendant knew or should have known that
[his or her] dog had... vicious propensities"
(Buicko v Neto, 112 A.D.3d 1046, 1047 ).
"Once such knowledge is established, an owner faces
strict liability for the harm the animal causes as a result
of those propensities" (Collier v Zambito, 1
N.Y.3d 444, 448  [citation omitted]). "In this
procedural setting, all evidence must be viewed in the light
most favorable to [the] plaintiff" (Czarnecki v
Welch, 13 A.D.3d 952, 953  [citations omitted];
see Calabro v Bennett, 291 A.D.2d 616, 616 ).
We find that defendant did not satisfy his initial burden
and, accordingly, we reverse.
motion, along with his deposition testimony, defendant
submitted the deposition testimony of his girlfriend and that
of plaintiff. However, rather than showing that he was
entitled to summary judgment, the deposition testimony showed
just the opposite. Defendant testified that the dog was
chained outside in order to alert him to the presence of
people in his yard and to protect business assets on his
property. He testified that the dog is "there to
bark" and that barking and running to the full extent of
its chain when people enter the property is the dog's
"job." Defendant described an incident three to
five years prior to the instant bite in which the dog grabbed
a customer's pant leg, though defendant claimed that the
dog did not break any skin. We note that, even if the dog had
not broken the person's skin, such aggressive behavior
may reflect a proclivity to act in such a way that puts
others at risk of harm and can be found to be evidence of a
vicious propensity (see Morse v Colombo, 8 A.D.3d
808, 809 ).
the following exchange took place during defendant's
"Q. And you have her on a chain, she'll run to the
end of the chain as far as she can go, but the chain holds
her back from being able to go any further?
Q. And to prevent her from biting the people that come on the
A. Correct. Correct. She has actually gotten off the chain
when people were there and she hasn't bit ...