Beck v. Morse

• Decision Date: 27 April 2000
• Citation: 706 N.Y.S.2d 755,271 A.D.2d 916
• Parties: MEGAN BECK, an Infant, by DAVID BECK, Her Father and Guardian, et al., Respondents-Appellants,<BR>v.<BR>ROGER G. MORSE et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 916

706 N.Y.S.2d 755

MEGAN BECK, an Infant, by DAVID BECK, Her Father and Guardian, et al., Respondents-Appellants,

v.ROGER G. MORSE et al., Appellants-Respondents.

Decided April 27, 2000.

Crew III, Spain, Carpinello and Mugglin, JJ., concur.

Cardona, P. J.

On the afternoon of December 27, 1996, plaintiffMegan Beck(hereinafter the infant) was playing with her brother and cousin outside of her grandparents' house in the Town of Poestenkill, Rennselear County, when two golden retrievers entered the yard.The infant identified the dogs, named Dakota and Montana, as belonging to defendants, neighbors of her grandparents.The dogs had apparently left defendants' yard where they were confined by an invisible fence.The children proceeded to play with the dogs; however, when petting one of them, the infant was bit on her face.

As a result of injuries sustained, the infant's father commenced this negligence action on behalf of the infant and himself (hereinafter collectively referred to as plaintiffs) against defendants.Following joinder of issue, defendants moved, inter alia, for summary judgment dismissing the complaint and plaintiffs cross-moved, inter alia, for the imposition of sanctions pursuant to CPLR 3126 due to defendants' failure to comply with certain discovery demands.Upon finding the existence of questions of fact as to the alleged vicious propensities of defendants' dogs, Supreme Court, inter alia, denied defendants' motion for summary judgment and plaintiffs' cross motion for the imposition of sanctions.These cross appeals ensued.

Initially, "[i]t is settled that in order to hold an owner strictly liable for personal injuries caused by a domestic animal, it must be proven that the animal had vicious propensities of which the owner knew or should have known"(Velazquez v Carns,244 AD2d 620;see, Wilson v Whiteman,237 AD2d 814).In support of their motion for summary judgment, the initial burden was upon defendants"to establish they did not have actual or constructive notice of their dog's vicious propensities"(Rogers v Travis,229 AD2d 879;see, Wilson v Bruce,198 AD2d 664, lv denied83 NY2d 752;Toolan v Hertel,201 AD2d 816).Here, both defendants averred that, prior to the December 27, 1996 incident, they were not aware of any aggressive or dangerous behavior exhibited by their dogs and they had not received any such complaints.They further submitted the affidavit of the dogs' veterinarian who confirmed that neither Montana nor Dakota possessed vicious propensities.In addition, defendants submitted deposition testimony of the infant in which she indicated that she was not afraid of the dogs and had played with them on previous occasions.She stated that when they came into her grandparents' yard on December 27, 1996, the dogs were wagging their tails and acting friendly.The infant's parents stated that, when the infant had played with the dogs on prior occasions, the dogs never nipped or growled but were always friendly.

Since de...