On July 5, 2016, the Bakshis’ dog allegedly mauled a small dog owned by Felice Kobrick and bit the finger of Frances Drakes. The incident occurred in the street abutting the Bakshis’ property in Nassau County. A few days later, Kobrick’s dog was euthanized.

The Drakes sued the Bakshis to recover damages for personal injuries. The Bakshis moved for summary judgment dismissing the complaint. Supreme Court granted the motion.

To recover in strict liability for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known about. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others. Evidence tending to prove that a dog has vicious propensities includes 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.

On appeal the Court agreed that the Bakshis established their prima facie entitlement to judgment as a matter of law by presenting evidence that they neither knew nor should have known that their dog had vicious propensities. In support of their motion, the Bakshis submitted the deposition testimony of the parties. According to the Bakshis, prior to the incident, their dog had never bitten anyone or another animal. Their dog was allowed to roam freely inside the house and in the backyard and lived with the Bakshis’ two small children and two other dogs without incident. In opposition, the Drakes failed to raise a triable issue of fact.

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On October 13, 2014, a then 11-year-old boy was injured after being bitten on the face by Mejia’s dog while he was at Mejia’s house with his older brother. Their mother filed suit on behalf of both children to recover damages for their injuries. Mejia moved for summary judgment dismissing the complaint, arguing that he had no notice of any vicious propensities on the part of the dog. Supreme Court denied the motion as to the causes of action asserted on behalf of the younger child and granted the motion as to the claims asserted on behalf of her brother.

To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to demonstrate a dog’s vicious propensities includes evidence of a prior attack, the dog’s tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm. Knowledge of an animal’s vicious propensities may also be discerned, by a jury, from the nature and result of the attack.

On appeal, the Court found that Mejia met his prima facie burden of demonstrating his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted on behalf of the younger child. Affidavits demonstrated that he was unaware of any incident where the dog bit any person or animal, or acted aggressively, viciously, or ferociously, or attacked, harmed, or threatened to harm any person or animal.

In opposition, the parent submitted evidence demonstrating that the dog was kept, at least in part, as a guard dog, that the dog, unprovoked, bit the child on the face and would not let go until another boy pried open the dog’s mouth, and that the child suffered multiple severe lacerations to his face which required emergency surgery and left him with multiple scars.

Accordingly, the Appeals Court agreed with the Supreme Court’s determination denying that branch of Mejia’s motion which was for summary judgment dismissing the complaint insofar as asserted on behalf of the younger child.

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On February 28, 2019, Ralph Sammarco was leaving his house at 48 Saratoga Boulevard, in the City of Gloversville. He observed Christopher Town’s dog, a black labrador retriever, known as Neo, jump over the boundary fence that separates his property from Town’s home. After jumping the fence, Neo approached Sammarco, who was walking to his car, and began to bark, growl, and bare his teeth. The encounter lasted approximately ten to fifteen seconds, and ended when Neo retreated to his own property, after being called home by Town’s’s roommate.

Between the summer of 2018, and March of 2019, Sammarco was subjected to a total of four identical encounters with the dog, each time after Neo had either escaped from his owner’s yard, or was allowed out-of-doors without a leash or other restraint.

The applicable law, in pertinent part, defined a “dangerous dog” as any dog which behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons.

It was un-controverted that Neo was a large breed Labrador retriever, who had been found at large, within the neighborhood, on several occasions. On March 5, 2019, Neo was, once again, allowed out-of-doors, without a leash, while the person responsible for his control, stood on the porch.

While Town disputed Sammarco’s version of his encounter with Neo that day, the Court had no reason to doubt Sammarco’s testimony, which was found to be both credible and reliable. The Court was also convinced that, on March 5, 2019, Neo escaped his owner’s yard, and approached Sammarco in an aggressive manner.

The fact that Neo was friendly and non-threatening to people other than Sammarco did not relieve the responsibility to answer for the dog’s actions. While arguably friendly, Neo appeared to take special exception to Sammarco, and there was a very real danger associated with the fact that canine behavior was unpredictable. These realties made the qualified property rights in dogs subject to regulation, and the law did not require evidence of a bite, injury, or actual physical contact before a dog could be designated as “dangerous.”

Barking and growling were normal canine behaviors. Being found at large, or running loose onto someone else’s property, without a leash, was not. The mere fact that Neo barked, growled or bared his teeth at Sammarco did not make him “dangerous.” What made Neo dangerous, in the eyes of the Court, were those behaviors, together with his propensity for aggression against Sammarco, and his owner’s inability or unwillingness to train and control the dog.

Ultimately, the test of “reasonableness” was objective. The Court found that a reasonable person, under the same, or similar circumstances as Sammarco, would have been placed in fear and apprehension of a serious, unjustified, imminent threat of serious physical injury. And those facts, together with the owner’s repeated lack of control over the animal, represented a real and significant danger to the public.

The Court designated Neo as a dangerous dog, subject to specified conditions and restrictions included within a “Dangerous Dog Order”.

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An action sought damages for injuries allegedly sustained when a dog owned by Jenna Boring bit Jennifer M.C.-Y. and her infant daughter as they left their car. Supreme Court denied Boring’s motion for summary judgment dismissing the complaint.

Upon appeal, the Court agreed that Boring was entitled to summary judgment dismissing the complaint against her. Even assuming, arguendo, that the dog possessed the requisite vicious propensities, Boring met her initial burden on the motion by submitting deposition testimony from herself, her son, and her then boyfriend, which established that she lacked actual or constructive knowledge that the dog had any vicious propensities.

In opposition to the motion, the affidavit of one of Boring’s neighbors stating that, on at least two prior occasions, she had seen the dog roaming the neighborhood, and that the dog entered into her backyard and started to bark at her in an aggressive and angry way, thereby putting her in fear that she would be bitten by the dog.

The neighbor did not state that she informed Boring of the two incidents and thus the affidavit did not raise an issue of fact whether Boring had actual knowledge of the dog’s vicious propensities. Furthermore, the neighbor’s affidavit did not detail when the two prior incidents occurred, and thus the affidavit did not raise an issue of fact whether Boring had constructive knowledge of the dog’s vicious propensities, i.e., that the vicious propensities had “existed for a sufficient period of time for a reasonable person to discover them.”