Althoff v. Lefebvre
| Decision Date | 23 June 1997 |
| Citation | 240 A.D.2d 604,658 N.Y.S.2d 695 |
| Parties | George ALTHOFF, Appellant, v. Virginia LEFEBVRE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
McElligott, Kujawski & Dellicarpini, Deer Park (Denis J. McElligott, of counsel), for appellant.
O'Connor, O'Connor, Hintz & Deveney, Garden City (Kevin J. Murtagh, of counsel), for respondent.
Before BRACKEN, J.P., and SANTUCCI, GOLDSTEIN and LUCIANO, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 14, 1996, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff was injured when a dog owned by the defendant jumped up on the plaintiff and caused him to fall. We agree with the Supreme Court that the plaintiff failed as a matter of law to demonstrate a viable strict liability claim against the defendant. Indeed, the defendant made a prima facie showing of her entitlement to judgment as a matter of law (see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642), and the plaintiff failed to come forward with evidence establishing either the existence of a vicious propensity on the part of the dog or the defendant's knowledge of such a propensity (see generally, Arcara v. Whytas, 219 A.D.2d 871, 632 N.Y.S.2d 349; Bohm v. Nystrum Constr., 208 A.D.2d 668, 617 N.Y.S.2d 520; Toolan v. Hertel, 201 A.D.2d 816, 607 N.Y.S.2d 198; DeVaul v. Carvigo, Inc., 138 A.D.2d 669, 526 N.Y.S.2d 483).
Moreover, to the extent that the plaintiff's single cause of action can also be construed as a claim sounding in common-law negligence (but see, CPLR 3014), we find that the defendant's demonstrated lack of knowledge of a propensity on the part of her dog to jump up on people defeats this claim (see generally, Young v. Wyman, 159 A.D.2d 792, 551 N.Y.S.2d 1009, affd. 76 N.Y.2d 1009, 565 N.Y.S.2d 752, 566 N.E.2d 1157; Hyde v. Clute, 235 A.D.2d 909, 652 N.Y.S.2d 836; Staller v. Westfall, 225 A.D.2d 885, 639 N.Y.S.2d 147; Nilsen v. Johnson, 191 A.D.2d 930, 594 N.Y.S.2d 913). Contrary to the plaintiff's contention, liability cannot be premised solely on the fact that the defendant left the dog unrestrained.
The plaintiff's remaining contentions are without merit.
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