Moriano v. Schmidt

Aug 3, 1987
Versions:133 A.D.2d 72
518 N.Y.S.2d 416
1987 N.Y. App. Div. LEXIS 49597

In an action to recover damages for personal injuries, etc., resulting from a dog bite, the plaintiffs appeal from a judgment of the Supreme Court, Orange County (Green, J.), dated June 26, 1986, which is against them and in favor of the defendants upon the granting of the defendants’ motion made after the conclusion of the presentation of evidence by the parties to dismiss the complaint for failure to establish a prima facie case.

Ordered that the judgment is reversed, on the law, the motion is denied, and a new trial is granted, with costs to abide the event.

The evidence presented at trial, viewed in a light most favorable to the plaintiffs (see, Lipsius v White, 91 AD2d 271, 276), demonstrated that the defendants regularly kept the dog chained to a stake in their backyard, that the dog would growl and pull at his chain whenever anyone entered the backyard, that the defendant owner on one occasion warned another neighbor to stay away from the dog because it would bite, and that the attack by the dog on the infant plaintiff was severe and unprovoked. Under the circumstances, we find that the evidence was sufficient to establish a prima facie case with respect to both the dog’s vicious propensities and the defendants’ knowledge thereof (see, Brophy v Columbia County Agric. Socy., 116 AD2d 873; Russell v Lepre, 99 AD2d 489; Lagoda v Dorr, 28 AD2d 208). Thus the complaint was improperly dismissed. Mollen, P. J., Brown, Weinstein and Rubin, JJ., concur.