Goldberg v. Aaron

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Rosato, J.), entered October 29, 1998, which granted the defendants’ motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. 295 The plaintiff Samuel Goldberg was injured when a stray dog, which had wandered onto the defendants’ property, attacked and bit him. When a plaintiff seeks to recover in strict liability in tort for a dog bite, the plaintiff must prove that the dog has vicious propensities and that the owner or person in control of the dog knew or should have known of such propensities (see, Lugo v Angle of Green, 268 AD2d 567; Marino v Assogna, 268 AD2d 569). The defendants made a prima facie showing of entitlement to judgment as a matter of law. We agree with the Supreme Court that in opposition to the motion for summary judgment the plaintiffs failed to raise any material issues of fact that the defendants harbored or controlled the stray dog in question, or that the defendants had knowledge that the dog possessed any alleged vicious propensities. To the extent that the complaint seeks to recover damages based on common-law negligence, under the circumstances, the defendants were also entitled to summary judgment. Mangano, P. J., Santucci, Krausman, Florio and Schmidt, JJ., concur.