In order to bring a viable dog bite case in New York, a plaintiff must establish that the owner had knowledge of a vicious propensity for the type of action at issue.  Often, plaintiff speaks to a disgruntled neighbor, who provides an account of a previous incident.

That recently occurred in Gervais v. Laino, in which plaintiff was injured when she was scratched or bitten by defendant’s dog in the park, which was caught in a fence.  At the time of the incident, plaintiff had probably been trying to free the dog from the fence at the time of the incident.

The defendant dog owner moved for summary judgment on the basis that there was no prior knowledge of the dog’s vicious propensities, based on four neighbor affidavits and an American Kennel Club’s Good Citizen certification.

In opposition, plaintiff submitted another neighbor’s testimony indicating that the defendant’s dog had a history of growling and two scuffles with the neighbor’s two dogs.  The trial court denied defendant’s summary judgment motion on the basis of this previous behavior.

On appeal, the First Department reversed the lower court’s decision and granted defendant summary judgment.  The Court noted that knowledge that a dog previously growled — either at other dogs or people — was insufficient to establish knowledge of a vicious propensity, and therefore ruled in favor of the owner.

Thanks to Jung Lee for his contribution to this post.