Teehan v. Callahan

In an action to recover damages for personal injuries, the defendants William Callahan, Jr., and Denise Callahan appeal from an order of the Supreme Court, Nassau County (Daily, J.), dated December 23, 1999, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them. Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed. Where, as here, the plaintiffs seek to recover in strict liability in tort for a dog bite, they must prove that the dog had vicious propensities and that the owner or the 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). In opposition to the appellants’ motion, in which they made a prima facie showing of their entitlement to summary judgment, the plaintiffs failed to come forward with proof in evidentiary form that the dog exhibited any vicious propensities. Therefore, the plaintiffs failed to raise a triable issue of fact, and summary judgment should have been granted (see, Lugo v Angle of Green, supra). Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.