Saboe v. Splish Splash at Adventure Land, Inc.

—In an action to recover damages for personal injuries, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Dunn, J.), dated January 13, 1999, as, upon renewal and reargument, adhered to a prior determination made in an order of the same court dated June 16, 1998, denying its motion for summary judgment dismissing the complaint. Ordered that the order dated January 13, 1999, is affirmed insofar as appealed from, with costs. The plaintiff commenced this action sounding in strict liability in tort and negligence to recover damages for injuries caused when he was bitten by a German Shepherd dog kept on the defendant’s premises. To recover in strict liability in tort for a dog bite, a plaintiff must prove that the dog has vicious propensities and that the owner or the person in control of the premises where the dog was kept knew or should have known of such propensities (see, Strunk v Zoltanski, 62 NY2d 572; Lugo v Angle of Green, 268 AD2d 567; White v Bruner, 233 AD2d 439). There exist triable issues of fact as to whether the subject dog had vicious propensities, and if so, whether those propensities were known or should have been known to the defendant (see, Coon v Holmes, 253 AD2d 731; Moriano v Schmidt, 133 AD2d 72). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.