Both Parties Moved for Summary Judgment
Kathleen Piedimonte commenced an action against Inez A. Alvarenga-Benitez to recover damages for personal injuries she allegedly sustained as a result of an encounter with Benitz’ dog. Piedimonte testified at her deposition that the dog bit the back of her leg and jumped on her, causing her to fall and break her leg.
Piedimonte moved for summary judgment on the issue of liability and Benitez cross-moved for summary judgment dismissing the complaint, contending that his dog did not have vicious propensities and that, in any event, he neither knew, nor should have known, that the dog had any such propensities. Supreme Court denied Piedimonte’s motion and granted Benitez’ cross-motion. Piedimonte appealed.
The sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability, whereby ‘a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities. Evidence tending to prove such propensities included a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.
Here, Benitez failed to submit sufficient evidence to establish, prima facie, either that his dog did not have vicious propensities, or that he did not know, or have reason to know, of the dog’s vicious propensities. His submissions, including, among other things, the transcripts of the deposition testimony of Piedimonte and two neighborhood residents, demonstrated that, prior to the incident, the dog regularly barked, growled, and bared his teeth, and chased children in the neighborhood. Additionally, Piedimonte testified that one month before the incident, Benitez’ wife saw the dog bite through her pant leg. Since Benitez failed to establish his prima facie entitlement to judgment as a matter of law, his cross-motion for summary judgment dismissing the complaint should have been denied.
But contrary to her contention, Piedemonte failed to establish a prima facie entitlement to judgment as a matter of law on the issue of liability. In support of the motion, she submitted a transcript of Benitez’ deposition testimony indicating that, prior to the incident, he was not aware, nor should he have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior. So Supreme Court properly denied Piedimonte’s’ motion for summary judgment on the issue of liability.