CLAPS v. ANIMAL HAVEN, INC.


34 A.D.3d 715 (2006)

825 N.Y.S.2d 125

VIRGINIA CLAPS, Appellant, v. ANIMAL HAVEN, INC., et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided November 28, 2006.


Ordered that the order is affirmed, with one bill of costs.

The plaintiff allegedly sustained injuries when one of several dogs being shown for adoption by the defendant Animal Haven, Inc. (hereinafter Animal Haven), on the sidewalk in front of a retail store of the defendant Petco Animal Supplies, Inc., doing business as Petco (hereinafter Petco), allegedly attacked her, biting down on her coat and thigh, and causing her to fall to the ground.

To recover in strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities (see Bard v Jahnke, 6 N.Y.3d 592 [2006]; Collier v Zambito, 1 N.Y.3d 444, 448 [2004]). Vicious propensities include the "propensity to do any act that might endanger the safety of the persons and property of others in a given situation" (Collier v Zambito, supra at 446, quoting Dickson v McCoy, 39 N.Y. 400, 403 [1868]).

Here, the defendants established their prima facie entitlement to judgment as a matter of law on the second cause of action sounding in strict liability by presenting evidence that the dog previously had been shown approximately 30 times and was a "sweet" and "easily shown" dog who had never bitten or jumped on anyone or exhibited any aggressiveness. As such, the defendants did not have notice of any vicious propensities (see Bard v Jahnke, supra; Collier v Zambito, supra; Cohen v Kretzschmar, 30 A.D.3d 555 [2006]; Slacin v Aquafredda, 2 A.D.3d 624 [2003]). In response, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether the dog had vicious propensities (see Bard v Jahnke, supra; Collier v Zambito, supra; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Cohen v Kretzschmar, supra; Slacin v Aquafredda, supra).

The plaintiff cannot recover on the first cause of action sounding in common-law negligence (see Bard v Jahnke, supra at 599; Morse v Colombo, 31 A.D.3d 916 [2006]).

The plaintiff's remaining contention is without merit.


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