In Lipinsky v Yarusso (2018 NY Slip Op 05925), two co-workers and friends ended up as adversaries when the defendant’s dog bit the plaintiff’s left thumb.

After the dog bit the plaintiff, he filed a lawsuit in Suffolk County Supreme Court.  The defendant then filed a motion for summary judgment, asking the Court to dismiss the lawsuit because his dog did not demonstrate vicious propensities, and even if the dog did, the plaintiff was not aware of such propensities.  The plaintiff’s opposition to the motion included an affidavit from the plaintiff’s neighbor stating that on two occasions prior to the incident, the defendant warned the neighbor to be careful near the dog because he bites.  Nonetheless, the Court granted the motion dismissing the lawsuit.

The plaintiff appealed the dismissal and the Appellate Division reversed the trial court’s findings.  The decision addressed the law and the facts, and reinstated the action because there were questions of fact regarding the defendant’s dog’s vicious propensities.

The appellate decision discussed the legal standard pertaining to liability for dog bites, holding that “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 . . . knew or should have known of such propensities” and 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.   The Court also held that “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.”

Applying this law to the facts as stated in the affidavit from the plaintiff’s neighbor, the Appellate Division held that the Supreme Court erred in dismissing the lawsuit.  Specifically, the decision held that the affidavit from the plaintiff’s neighbor was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities.

Thanks to George Parpas for his contribution to this article.