The following papers numbered 1 to 5, read on this motion were submitted on October 15, 2020. Papers Numbered Notice of Motion/Order to Show Cause, and Affidavits/Affirmations and Exhibits Annexed 1, 2 Affidavit/Affirmation in Opposition, and Exhibits Annexed 3 Reply Affidavit/Affirmation 4, 5 DECISION AND ORDER Defendants move for an order (Seq. 001) for granting them summary judgment and dismissing the complaint. Plaintiff cross-moves (Seq. 002) for an order awarding her summary judgment on the issue of Defendants’ liability. This is an action in which Plaintiff claims to have been injured as a result of an attack by Defendants’ dog, a pit bull named Capone. In brief, Plaintiff claims that while she was walking her own dog on the sidewalk in front of Defendants’ residence, she was attacked by the dog and knocked to the ground, sustaining various fractures and lacerations. Defendants have made a prima facie showing of entitlement to judgment as a matter of law, by presenting evidence that there were no prior incidents involving this dog, no growling or prior complaints, and no knowledge of any vicious propensities. Evidence tending to prove that a dog has vicious propensities may include a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, or a proclivity to act in a way that puts others at risk of harm. (see, Bard v. Jahnke, 6 NY 3d 592, 597). In opposition, Plaintiff offers her previous testimony that she heard vicious growling as she passed Defendants’ house, that the dog broke its leash, and immediately broke through a hole in the fence and thereafter ran after Plaintiff and her dog. Plaintiff also points to testimony of Defendant Elizabeth Importuna that neither she nor her family members permit the dog to be let loose in the yard; they have to take him out on a leash notwithstanding that the yard is fenced in. On this point, she said that Defendants never take the dog for a walk outside of their yard. Also, there is testimony from Defendants’ son that two people are needed to take him for a walk. Plaintiff has offered sufficient evidence in opposition to raise bona fide issues of fact. The dog’s growling, the manner in which he was restrained, as described hereinabove, a proclivity to put others at risk of harm by breaking his leash and breaking through a hole in the fence, are all indicia of vicious propensities (see, Hodgson-Romain v. Hunter, 72 AD 3d 741 (2d Dept.); Lina Thai Wong v. Largana, 170 AD 3d 700 (2d Dept.)). see also, Shuffian v. Garafola, 9 AD 2d 910 (2d Dept)). In particular, circumstances showing that the owner found it necessary to keep the dog tied up, and took precautions to restrain it, are further evidence of knowledge of the dog’s propensities (Lagoda v. Dorr, 28 AD 2d 208, 210, citing Brice v. Bauer 108 NY 428, 432, and Hahnke v. Friederich, 140 NY 224). Although Defendant denied knowledge of the dog’s vicious propensities, asserting that there have been no prior incidents involving the dog, no prior complaints, and no growling, the evidence adduced convinces this Court that a jury may find that Defendants knew or should have known about it. Also, the parties provided conflicting testimony as to the nature of the contact between Plaintiff and the dog on the day in question (see, e.g. Lina Thai Wong v. Largana, supra.) It must be remembered that the Court’s role in considering summary judgment motions is issue-finding, not issue-determination (Lui v. Park Ridge at Terryville Ass’n Inc., 196 AD 2d 579 (2d Dept.), and that the Court should not determine issues of credibility (Id.). For these reasons, both the motion and cross-motion (Seq. 001, 002) are denied. Dated: October 16, 2020
