Papadopoulos v. Gardner's Village, Inc.

—In an action to recover damages for personal injuries, etc., the plaintiffs ap [217] peal from an order of the Supreme Court, Nassau County (Wager, J.), dated March 10, 1993, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The instant action arose out of an incident which occurred on or about November 7, 1988, when the plaintiff Demetra Papadopoulos, then 70 years old, and her four year old grandson, were visiting the defendant’s petting zoo. While at the zoo, a goat allegedly ran at Mrs. Papadopoulos and struck her from behind with its horns, causing her to fall to the ground. As a result, she fractured her hip. It is well settled that in order to obtain summary judgment the proponent must establish the cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in his favor (see, CPLR 3212 [b]). In this instance, the defendant, the moving party, met its burden. It then became incumbent upon the plaintiffs to produce evidentiary proof in admissible form sufficient to require a trial of material questions of facts (see, Zuckerman v City of New York, 49 NY2d 557). A goat is a domestic animal (see, Agriculture and Markets Law § 108 [7]). Thus, the plaintiffs were required to “adduce proof not only that the animal had vicious propensities but that the owner of the animal had knowledge of such propensities or that they existed for such a period of time that a reasonably prudent person would have discovered them” (Appel v Charles Heinsohn, Inc., 91 AD2d 1029, 1030, affd 59 NY2d 741; see, PJI 2:220; see also, Timpanaro v Topping Riding School, 177 AD2d 570). We find that the plaintiffs failed to meet this burden, and, thus, failed to establish a factual issue warranting the denial of the defendant’s motion for summary judgment. Bracken, J. P., Rosenblatt, Copertino and Pizzuto, JJ., concur.