McLane v. Jones

1377 Appeal from an order of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered January 12, 2005 in a personal injury action. The order denied defendant’s motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by her son when he was bitten by defendant’s dog. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Defendant met her initial burden on the motion by establishing that she did not have actual or constructive notice of her dog’s alleged vicious propensities (see Tomaszewski v Seewaldt, 306 AD2d 907 [2003]; Dixon v Frazini, 188 AD2d 1054 [1992]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We conclude, however, that plaintiff raised an issue of fact whether defendant knew or should have known of her dog’s alleged vicious propensities by submitting evidence that, prior to the incident herein, defendant’s dog would run along defendant’s side-yard fence and would behave in an aggressive manner by jumping on the fence, casting her paws over the fence, and barking and growling as pedestrians passed by the house (see Collier v Zambito, 1 NY3d 444, 446-447 [2004]; cf. Sorel v Iacobucci, 221 AD2d 852, 853 [1995]). Present— Hurlbutt, J.P., Scudder, Smith, Pine and Hayes, JJ.