Opinion
2001-10735
Submitted March 6, 2002.
April 15, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Queens County (Posner, J.), dated November 1, 2001, as denied its motion for summary judgment dismissing the complaint.
Steven G. Fauth, New York, N.Y. (John H. Shin of counsel), for appellant.
Sonkin, Fifer Gershon, New York, N.Y. (Howard Fifer of counsel), for respondents.
Before: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, CORNELIUS J. O'BRIEN, HOWARD MILLER, SANDRA L. TOWNES, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Where, as here, a plaintiff seeks to recover in strict liability for a dog bite, the plaintiff must prove that the dog had vicious propensities and that the owner or the person in control of the premises where the dog was kept knew or should have known of such propensities (see White v. Bruner, 233 A.D.2d 439; Strunk v. Zoltanski, 62 N.Y.2d 572). Here, there exist triable issues of fact as to whether the subject dog had vicious propensities, and if so, whether those propensities were known or should have been known to the defendant (see Beljean v. Maiuzzo, 256 A.D.2d 533; Coon v. Holmes, 253 A.D.2d 731; Moriano v. Schmidt, 133 A.D.2d 72).
RITTER, J.P., FEUERSTEIN, O'BRIEN, H. MILLER and TOWNES, JJ., concur.