Summary
In Toolan v. Hertel, 201 AD2d 816, 607 N.Y.S.2d 198 (3rd Dept. 1994) the court granted the defendant's motion for summary judgment dismissing plaintiff's strict liability claim for personal injuries caused by defendant's English Mastiff, because plaintiff failed to establish that the dog had vicious propensities and that the owner was aware of those propensities.
Summary of this case from Wilcox v. PerkinsOpinion
February 10, 1994
Appeal from the Supreme Court, Madison County (Tait, Jr., J.).
In our view, defendants' motion for summary judgment was properly granted in this action seeking to recover for personal injuries sustained by plaintiff after she was attacked by a 175-pound male English Mastiff owned by defendants. In order to establish a prima facie case of strict liability in a dog bite case, the plaintiff must establish that the animal had vicious propensities and that its owner had knowledge of such propensities. Here, in support of their motion for summary judgment relief, defendants satisfied their initial burden by submitting proof in admissible form establishing that their dog was a gentle, friendly animal that had never previously exhibited vicious tendencies of any kind. Plaintiff's proof in opposition offered nothing more than speculation as to the dog's nature and defendants' knowledge of same.
Cardona, P.J., Mikoll, White, Casey and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.