Plennert v. Abel
| Citation | 704 N.Y.S.2d 417,269 A.D.2d 796 |
| Parties | STEVEN M. PLENNERT, an Infant, by DENISE PLENNERT, His Parent and Natural Guardian, et al., Respondents,<BR>v.<BR>MELVIN ABEL et al., Appellants, et al., Defendant. |
| Decision Date | 16 February 2000 |
| Court | New York Supreme Court — Appellate Division |
Present — Pine, J. P., Wisner, Hurlbutt and Balio, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint against defendants Melvin Abel and Theresa Abel dismissed.
Supreme Court erred in denying the motion of Melvin Abel and Theresa Abel (defendants) for summary judgment dismissing the complaint against them. The infant plaintiff, two-year-old Steven Matthew Plennert, was bitten by defendants' dog. The dog barked at times when people traversed defendants' driveway, but had no history of biting or behaving in a threatening manner toward anyone. On the day of the incident, Steven was "talking" to the dog in the presence of defendants' daughters when the dog suddenly attacked him, causing injuries that required his hospitalization.
Defendants met their initial burden by tendering proof in admissible form establishing that they had no knowledge that the dog had vicious propensities. By submitting hospital records and photographs that demonstrated the severity of the attack, plaintiffs raised an issue of fact regarding the dog's alleged vicious propensities; however, plaintiffs failed to raise an issue of fact whether defendants knew or should have known of the alleged vicious propensities (see, Perry v Mikolajczyk, 259 AD2d 987; Wilson v Whiteman, 237 AD2d 814).
There is no merit to the contention of plaintiffs that they may assert a common-law negligence cause of action against defendants based on their failure to keep the dog inside or otherwise to keep Steven from going near her. "Liability is not dependent upon proof of negligence in the manner of keeping or confining the animal, but is predicated upon the owner's keeping of the animal, despite his knowledge of the animal's vicious propensities" (Lynch v Nacewicz, 126 AD2d 708, 709; see, Smith v Farner, 229 AD2d 1017, 1018).
To continue reading
Request your trial
-
Doerr v. Goldsmith
...upon the owner's keeping of the animal, despite his [or her] knowledge of the animal's vicious propensities” (Plennert v. Abel, 269 A.D.2d 796, 796, 704 N.Y.S.2d 417 [4th Dept.2000] ; see Smith v. Farner, 229 A.D.2d 1017, 1018, 645 N.Y.S.2d 355 [4th Dept.1996] ). Yet even the Fourth Departm......
-
Doerr v. Goldsmith
...upon the owner's keeping of the animal, despite his [or her] knowledge of the animal's vicious propensities” (Plennert v. Abel, 269 A.D.2d 796, 796, 704 N.Y.S.2d 417 [4th Dept.2000] ; see Smith v. Farner, 229 A.D.2d 1017, 1018, 645 N.Y.S.2d 355 [4th Dept.1996] ). Yet even the Fourth Departm......
-
Basile v. Salka
...dog would often jump on the fence and bark or grown at people walking by does not demonstrate vicious propensities); Plennert v. Abel, 269 A.D.2d 796, 704 N.Y.S.2d 417 (4lh Dept. 2000)(holding that summary judgment should have been granted where the defendant's dog barked at times when peop......
-
Provorse v. Curtis, 01-00779
...issues of fact whether Curtis's dog exhibited a vicious propensity and whether Curtis had knowledge of that propensity (cf., Plennert v Abel, 269 A.D.2d 796). In opposition to the motion, plaintiff submitted proof that Curtis was aware that his dog would "muzzle greet[]" Curtis's customers ......
-
Overruling by implication and the consequent burden upon bench and bar.
...of the Appellate Division started to rule that it was, to put it bluntly, vicious propensities or bust. See, e.g., Plennert v. Abel, 269 A.D.2d 796, 796, 704 N.Y.S.2d 417, 418 (App. Div. 4th Dep't 2000); Morse v. Colombo, 31 A.D.3d 916, 917, 819 N.Y.S.2d 162, 163-64 (App. Div. 3d Dep't 2006......