Wendy Schwartz Obtains Summary Judgment for Defendants in Dog Bite Case in Suffolk County
The infant plaintiff and her mother claimed that, on June 17, 2015, the infant plaintiff was attending a get together at our clients’ home when she was attacked by Otis, our clients’ Black Labrador Retriever. Otis bit the infant plaintiff’s face causing severe injuries and alleged emotional trauma. Otis was quickly taken to a veterinarian, placed in isolation, and later put down.
Our motion for summary judgment focused on the plaintiffs’ inability to show that Otis had any vicious propensities of which our clients’ were actually or constructively aware. Our clients testified Otis had never exhibited any vicious tendencies when being hugged, touched or grabbed, nor had either of our clients received any complaints regarding Otis’s temperament. In anticipation of arguments which were eventually raised in opposition to the motion our clients affirmed that Otis’s skin allergies did not affect his behavior or change his
temperament in any manner.
Furthermore, the infant plaintiff had previously been to defendants’ home and interacted with Otis describing the visit as “fun”. Plaintiffs argued that Otis’s relatively lengthy veterinary history for skin conditions caused him to be irritable and that our clients should have been aware of same. Further, plaintiffs pointed to Otis’s documented aggressive behavior after the incident, while in confinement at the veterinarian’s office, as proof that he was a danger to others.
In our reply, we argued that plaintiffs’ expert affidavit relied on an unsupported allegation by the infant plaintiff’s mother that Otis had nipped at the infant plaintiff on a prior occasion —something the infant plaintiff testified did not occur and that Otis’s behavior after the accident could not serve as a basis for imputing notice.
The Court adopted our argument regarding the lack of credibility of plaintiff’s expert and the conclusory nature of his opinion and found that plaintiffs failed to demonstrate or provide any competent evidence that Otis had any vicious propensities of which our clients should have been aware. Accordingly, the Court granted summary judgment to defendants. The Court also denied plaintiff’s cross-motion to amend the complaint to add a cause of action based on strict liability noting there was no evidence of prior notice of any vicious propensities warranting the amendment. All claims were dismissed.