Articles & Publications 02.28.23

That Bites: Evidence Required to Seek Dismissal of a Dog Bite Case

Dogs bring a lot of joy to people’s lives.  However, there are occasions when an incident may occur that results in your dog biting another person or animal. In that scenario, there are some things to note to try and successfully defend the claim and get the case dismissed if a lawsuit is commenced. On February 10, 2023, the Appellate Division, Fourth Department provided some framework for having a dog bite incident case dismissed by a Defendant homeowner in Zicari v. Buckley, 2023 N.Y. Slip Op 00788 (4th Dep’t 2023).

In Zicari, Plaintiffs commenced the action seeking damages for injuries sustained when one of the Plaintiffs was allegedly attacked by a dog owned by the Defendant, and, while retreating from the dog, the same Plaintiff fell down the front steps of Defendant’s home. The Defendant moved for summary judgment, contending, among other things, that the strict liability cause of action for the dog attack should be dismissed on the ground that the Defendant was not aware that the dog had vicious propensities. The Supreme Court granted the motion and the Plaintiffs subsequently appealed the Decision. On appeal before the Fourth Department, however, the Appellate Division held that the Defendant did not meet his initial burden to dismiss the dog bite cause of action because he failed to establish that he neither knew nor should have known that the dog had any vicious propensities (citing Young v. Grizanti, 164 A.D.3d 1661, 1662 (4th Dep’t 2018); Brady v. Contangelo, 148 A.D.3d 1544, 1546 (4th Dep’t 2017)).

In support of the initial motion, the Defendant submitted Plaintiff’s deposition testimony that, while Plaintiff was at Defendants door, the dog came running and was barking, pushed the door open, and lunged at Plaintiff, biting him in the right thigh. The dog then bit the back of Plaintiff’s left leg and calf when the Plaintiff was on the ground. Plaintiff further testified that, immediately after the incident, Defendant told the Plaintiff, who was wearing a winter coat at the time of the incident, that “the dog doesn’t like people who wear coats.” Plaintiff also testified that Defendant told him that “the dog was protective.” Defendant further submitted the deposition testimony of the tenant who lived in the home and was familiar with the dog, that the dog was protective of persons who lived in the home and that, when a stranger was present in the house, the dog would get in front of a member of the household to protect him or her. The Appellate Division held that such evidence, combined with the evidence of the unprovoked and vicious nature of the attack and the severity of the injuries sustained by Plaintiff was sufficient to raise triable issues of fact as to whether the dog had vicious propensities and whether the Defendant knew or should have known of them (citing to Francis v. Becker, 50 A.D.3d 1507, 1508 (4th Dep’t 2008)). The Appellate Division also noted that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities” (citing to Collier v. Zambito, 1 N.Y.3d 444, 447 (2004)). Additionally, Plaintiff submitted the dog’s veterinary records, which indicated the dog had prior known “territorial issues,” that the dog was “barking a lot at people he [did] not like,” and that it was recommended to Defendant that he engage in daily “socialization exercises” with the dog. 

It is noted that that two Judges dissented in part and voted to affirm the lower Court’s Decision to dismiss the dog bite cause of action. The two dissenting Judges reasoned that the lower Court’s Decision should be upheld because the Defendant established as a matter of law that he lacked actual or constructive knowledge of any vicious propensities on the part of the dog and Plaintiffs failed to raise a triable issue of fact. The dissenting Judges noted that the deposition testimony of the Defendant and tenant established that the dog was a gentle, well-behaved family dog, who was not aggressive, menacing, or intimidating, was not a guard dog, and had never growled, nipped, or bitten anyone before (citing Collier, 1 N.Y.3d at 447; Francis, 50 A.D.3d at 1507). Neither Defendant nor the tenant had ever observed the dog exhibit any aggressive behavior in the past, and thus, Defendant established that the dog had not previously behaved in a threatening or menacing manner (citing Collier, 1 N.Y.3d at 447). Moreover, the majority cited to evidence that the Defendant and tenant characterized the dog as protective and having a dislike of people wearing coats, but absent from the analysis was an explanation of how these characteristics reflected a propensity to do any act that might endanger the safety of the persons and property of others in a given situation (id. At 446; Kidder v. Moore, 77 A.D.3d 1303, 1303-1304 (4th Dep’t 2010); Grillo v. Williams, 71 A.D.3d 1480, 1481 (4th Dep’t 2010)). Absent these vicious propensities, the dissenting Judges reasoned that the majority could not properly rely solely on evidence of the unprovoked and vicious nature of the attack and the severity of injuries as triable issues of fact as to whether the Defendant knew or should have known of vicious propensities of the dog.

As you can see from the Zicari case, dog bite cases are very fact-specific and it is important to note all characteristics of the dog and to obtain as much documentation as you can as to the dog’s history when defending and seeking to dismiss such a cause of action. Factors and evidence the Court looks at in determining whether a dog has a vicious propensity can include, but is not limited to, whether veterinary records suggest socialization, whether there was documentation or prior statements as to whether the dog was territorial or exhibited territorial behavior, whether there were prior statements as to the dog showing aggressive or threatening behavior such as barking or growling, whether there were incident reports or testimony of prior dog bites, whether the dog was provoked, and whether the dog is a guard dog. Claims professionals and Defendant dog owners should be conscious of the evidence and factors that Courts look at in determining whether such a case should be dismissed.

Jeffrey Marchese is a senior associate in the New York office of Segal McCambridge Singer & Mahoney. His practice focuses on construction litigation and counseling, general liability, premises liability and  sports, recreation and entertainment. He can be reached at