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Viotto v. O'Brien

Dismissal of Liability Claim Under 'One Free Bite' Rule by Employee From Dog Bite Denied

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The following papers, numbered 35-49, were read on this motion for summary judgment.Notice of Motion — Memorandum of Law — Affirmation — Exhibits A-J          No(s). 35-47Affirmation in Opposition    No(s). 48Reply Memorandum            No(s). 49

*1Motion by Defendant Vino Maestro, Ltd. for summary judgment, pursuant to CPLR 3212, dismissing the complaint in its entirety as against said Defendant is denied. In the instant action, Plaintiff alleges that she was bitten in the abdomen by a dog owned by Defendant O’Brien (“Defendant O’Brien”) while she was working in Defendant Vino Maestro, Ltd.’s wine and liquor store (“Defendant Wine Store”). Defendant Wine Store moves for summary judgment arguing that it did not know that Defendant O’Brien’s dog had such alleged vicious propensities, and therefore it cannot be held liable.1 Defendant Wine Store further moves for summary judgment, arguing that Plaintiff has improperly alleged claims of negligence against it — rather than a claim for liability under the “one free bite” rule. For reasons stated below, this Court finds that both arguments fail, and accordingly the instant motion is denied.

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