Full Case Name:  Theresa EARL et al., Individually and as Parents and Guardians of James Earl, an Infant, Appellants, v. Susan PIOWATY, Respondent, et al., Defendant

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Country of Origin:  United States Court Name:  Supreme Court, Appellate Division, Third Department, New York. Primary Citation:  42 A.D.3d 865 (N.Y.A.D. 3 Dept.) Date of Decision:  Thursday, July 26, 2007 Judge Name:  Mercure, J.P. Jurisdiction Level:  New York Alternate Citation:  2007 N.Y. Slip Op. 06212, 2007 WL 2127342 (N.Y.A.D. 3 Dept.), 839 N.Y.S.2d 861 Judges:  MUGGLIN ROSE and KANE J.P. JJ. MERCURE SPAIN Attorneys:  Blatchly & Simonson, P.C., New Paltz (Bruce D. Blatchly of counsel), for appellants. Roche, Corrigan, McCoy & Bush, Albany (Peter J. Corrigan of counsel), for respondent.
Summary: Plaintiffs' son was seriously injured when he was bitten in the face by a dog that belonged to defendant Susan Piowaty.  Plaintiffs brought action on behalf of their son against Piowaty and the animal shelter from which Piowaty had adopted the dog two weeks prior to the incident, alleging that they had constructive notice of the dog's vicious propensities because of a minor incident earlier that week.  However, this court agreed with the denial of plaintiffs' motion for summary judgment because there remains a triable issue as to the defendants' notice of the dog's vicious propensities at the time of the son's injury.

Appeal from an order of the Supreme Court (Bradley, J.), entered October 3, 2006 in Ulster County, which denied plaintiffs' motion for partial summary judgment on the issue of defendant Susan Piowaty's liability.

Plaintiffs' son was seriously injured when he was bitten in the face by a dog that belonged to defendant Susan Piowaty (hereinafter defendant). Plaintiffs' son claimed that he was speaking gently to the dog and calmly petting it when the dog suddenly jumped up and attacked him; defendant's sons assert that the incident occurred after plaintiffs' son startled the sleeping dog by shouting directly in the dog's face after winning a video game that the boys had been playing. Plaintiffs commenced this action individually and on their son's behalf against defendant and Rondout Valley Animals for Adoptions, Inc., the animal shelter from which defendant purchased the dog. As relevant here, plaintiffs alleged that defendant had either actual or constructive notice of the dog's vicious propensities. Supreme Court denied plaintiffs' subsequent motion for partial summary judgment on the issue of defendant's liability, prompting this appeal.

[1] [2] We affirm. It is well settled that “the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities” ( Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004]; see Bard v. Jahnke, 6 N.Y.3d 592, 596-597, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006] ). This knowledge may be established by, among other things, proof of “prior acts of a similar kind of which the owner had notice” ( Collier v. Zambito, supra at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). Evidence of “normal canine behavior” is insufficient, however, and proof of “rambunctious behavior [will] show awareness of a vicious propensity only if it [is] the very behavior that resulted in plaintiff's injury” ( Campo v. Holland, 32 A.D.3d 630, 631, 820 N.Y.S.2d 352 [2006] [internal quotation marks and citation omitted]; see Collier v. Zambito, supra at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; Brooks v. Parshall, 25 A.D.3d 853, 854, 806 N.Y.S.2d 796 [2006] ).

[3] In connection with their summary judgment motion here, plaintiffs relied upon defendant's deposition testimony stating that she had acquired the dog about two weeks prior to the incident and admitting that approximately one week later, the dog nipped Richard Kollath when he attempted to pet it. Defendant countered with an affidavit from Kollath, as well as her own affidavit and deposition testimony, explaining that the prior nip occurred after the dog had just recovered a frisbee and was trying to prevent Kollath from taking it. Kollath described the nip as “so minor that it did not break the skin or hurt me,” and stated that “[t]he dog did not show any aggressive behavior before or afterwards.” Accordingly, even assuming that plaintiffs met their initial burden-a point which defendant does not dispute-the evidence submitted by defendant was sufficient to raise a triable issue of fact regarding the dog's vicious propensities and defendant's lack of notice of those propensities ( see Coole-Mayhew v. Timm, 18 A.D.3d 948, 949-950, 794 N.Y.S.2d 486 [2005]; see also Fontanas v. Wilson, 300 A.D.2d 808, 809, 751 N.Y.S.2d 656 [2002]; Rogers v. Travis, 229 A.D.2d 879, 880, 646 N.Y.S.2d 206 [1996]; Tessiero v. Conrad, 186 A.D.2d 330, 330, 588 N.Y.S.2d 200 [1992] ).

*2 ORDERED that the order is affirmed, with costs.



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