Summary
In Bernstein, we held that the Appellate Division correctly disallowed the plaintiff's claim against the dog's owner and a toy store operated by the dog's owner "[s]ince there [was] no evidence... that the dog's owner had any knowledge of its vicious propensities" (Bernstein, 10 N.Y.3d at 788, 856 N.Y.S.2d 532, 886 N.E.2d 154).
Summary of this case from Hewitt v. Palmer Veterinary Clinic, PCOpinion
Argued February 14, 2008.
Decided March 18, 2008.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered May 1, 2007. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Jane S. Solomon, J.), which had granted defendants' motion for summary judgment dismissing the complaint and third-party defendant's motion for summary judgment dismissing the complaint and the third-party action.
Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224, affirmed.
Rappaport, Glass, Greene Levine, LLP, New York City ( James L. Forde of counsel), for appellants.
Carol R. Finocchio, New York City, Lisa M. Comeau, and Law Offices of John P. Humphreys, for respondents.
Hawkins, Feretic, Daly Maroney, New York City ( Brian J. Daly of counsel), for third-party defendant-respondent.
Before: Chief Judge KAYE and Judges CIPAEICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed with costs.
We held in Collier v Zambito ( 1 NY3d 444, 447) that a plaintiff bitten by a dog could not recover because he was unable to show that the dog's owner knew or should have known of the dog's "vicious propensities." In Bard v Jahnke ( 6 NY3d 592, 599), we held that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier."
Since there is no evidence in this case that the dog's owner had any knowledge of its vicious propensities, the Appellate Division was correct in affirming the dismissal of the complaint against defendants. Plaintiffs claims against third-party defendant were also properly dismissed, because there is no evidence that third-party defendant was negligent.
Order affirmed, with costs, in a memorandum.