Dogs

Summary:

This New York case arose following an incident that occurred on December 13, 2003, in which the appellant's two pit bull terriers entered the petitioner's property, and one of appellant's dogs ("Duke") attacked and injured the petitioner's pet dog. Following a special proceeding, the lower court determined that appellant's pit bull terrier named “Duke” was a dangerous dog and directed that it be destroyed. On appeal, the Supreme Court, Appellate Division found that the dangerous dog statute in effect on December 13, 2003, did not provide that one dog attacking another was conduct subject to the penalty of destruction (Agriculture and Markets Law former §§ 108, 121).

Summary: Plaintiffs' son was seriously injured when he was bitten in the face by a dog that belonged to defendant Susan Piowaty.  Plaintiffs brought action on behalf of their son against Piowaty and the animal shelter from which Piowaty had adopted the dog two weeks prior to the incident, alleging that they had constructive notice of the dog's vicious propensities because of a minor incident earlier that week.  However, this court agreed with the denial of plaintiffs' motion for summary judgment because there remains a triable issue as to the defendants' notice of the dog's vicious propensities at the time of the son's injury.

Summary:

In this New York Case, the plaintiffs appeal from an order of the Supreme Court, Nassau County which granted the defendants' motion for summary judgment dismissing the complaint for personal injuries and damages due to a dog bite. The court reaffirmed New York law that to recover in strict liability in tort for a dog bite or attack, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's propensities. The fact that the subject dog was brought to the animal shelter because another dog in the owner's household did not get along with it is not indicative that it had vicious propensities.

Summary:

The New York Supreme Court, Appellate Division, held that the owners established that their dog did not have a propensity to jump up on people, and that they were not negligent in the manner in which they handled the dog at the time of the alleged accident.  The judgment granting defendants' motion for summary judgment was affirmed.

Summary:

In this New York case, the plaintiff brought an action to recover for a dog bite sustained when she was walking on a local bike path. The court noted that it has consistently held, “a plaintiff may not recover for injuries sustained in an attack by a dog unless he or she establishes that the dog had vicious propensities and that its owner knew or should have known of such propensities”  Here, defendant and his girlfriend testified, without contradiction, that they did not experience any problems with the dog prior to the incident with Malpezzi. Specifically, each testified that Oreo did not display any act of aggression prior to biting Malpezzi. In opposition, plaintiff primarily relies upon the purportedly vicious nature of the attack, the fact that Oreo allegedly was restrained while on defendant's property and Oreo's specific breed. However, the court observed that where, as here, there is no other evidence even suggesting that defendant knew or should have known of Oreo's allegedly vicious propensities, consideration of the dog's breed is irrelevant. As such, Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.

Summary:

Passerby sued dog owner for bitten finger.  Held:  because dog had shown no previous vicious propensities, the owner is not strictly liable, and, the owner was not negligent.  Reversed.

Summary:

Infant child attacked and bit by dog when he was a guest in the owner's home.  After defenses motion for summary judgment was denied, the Appellate Court reversed, and this court affirms.

Summary:

In this small claims action, the plaintiff purchased an unhealthy dog from defendant that died soon after purchase.  The court held that the plaintiff is not limited to the remedies provided by General Business Law § 753 (1), which sets forth a consumer's right to a refund and/or reimbursement for certain expenses incurred in connection with the purchase of an unhealthy dog or cat, as plaintiff's dog came within the definition of "goods" as set forth in UCC 2-105 and defendant was a "merchant" within the meaning of UCC 2- 104 (1).  Accordingly, plaintiff could recover damages pursuant to UCC 2-714 on the theory that defendant breached the implied warranty of merchantability.  The case was remanded for a new trial to solely on the issue of damages limited to any sales tax paid by plaintiff that was not reimbursed by the insurance policy and the reasonable cost of veterinary expenses incurred.

Summary:

Plaintiffs commenced the instant action to recover veterinary expenses incurred by reason of the fact that the dog sold to them by defendant was not healthy. The court held that plaintiffs were not entitled to avail themselves of the remedies afforded by article 35-D of the General Business Law by reason of their failure to comply with the requirements set forth in section 753 thereof (to wit, they did not produce the dog for examination by a licensed veterinarian designated by the dealer, nor did they furnish the dealer with a certification of unfitness of the dog within three days after their receipt thereof). The court, however, noted that the article does not limit the rights or remedies which are otherwise available to a consumer under any other law, so the award by the court was affirmed (albeit on a different basis).

Summary:

Plaintiff brought a New York Small Claims Court action seeking recovery of the sum of $254.63, after a licensed veterinarian determined that plaintiff's newly purchased dog was unfit according to Article 35-B of the General Business Law.  Specifically, plaintiff sought damages under two alternate theories: violation of the sale contract's five-day express warranty and violation of the implied warranty of merchantability.  Due to the vet's initial diagnosis, plaintiff did not return the dog.  The court held that plaintiff elected to forgo the express warranty by retaining the dog.  With regard to the implied warranty of merchantability, the court found defendant is not a "person who deals in goods of the kind" to fall within the definition of merchant under the statute.