2008 NY Int. 40
This opinion is uncorrected and subject to revision before publication in the Official Reports.
2008 NY Slip Op 02463
Decided on March 18, 2008
No. 43
Danielle Bernstein, & c. et al., Appellants,
v
Penny Whistle Toys, Inc., et al., Respondents. (And a Third-Party Action.)
James L. Forde, for appellants.
Carol R. Finocchio, for respondents.
Brian J. Daly, for third-party respondent Weiner.
MEMORANDUM
The order of the Appellate Division should be affirmed with costs.
We held in Collier v Zambito 1 NY3d 444, 447 [2004]) that a plaintiff bitten by a dog could not recover because he was unable to show that the dog's owner knew or should have known of the dog's "vicious propensities." In Bard v Jahnke 6 NY3d 592, 599 [2006]), we held that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier."
Since there is no evidence in this case that the dog's owner had any knowledge of its vicious propensities, the Appellate Division was correct in affirming the dismissal of the complaint against defendants. Plaintiff's claims against third-party defendant were also properly dismissed, because there is no evidence that third-party defendant was negligent.
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Order affirmed, with costs, in a memorandum. Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Decided March 18, 2008