Plaintiff Hui Z. Huang a/k/a Hui Z. Chen moves, by order to show cause, for an order, pursuant to CPLR 3126, striking defendant's answer on the ground that he has allegedly destroyed key evidence or failed to make it available for inspection by plaintiff. In the alternative, plaintiff seeks an order compelling defendant to produce that evidence. Defendant cross-moves, pursuant to 3103, for an order granting him a protective order in regard to production of that evidence.

This action arises out of an incident that occurred on January 31, 2007 in which plaintiff was attacked and bitten by a dog owned by defendant. In her complaint, plaintiff alleges that defendant was aware that his dog was "of a fierce and vicious nature and likely to attack" and that the dog has, in fact bitten before. Plaintiff alleges that on the date of the incident, while she was present at the defendant's house located at 939 Third Street in Brooklyn, "the defendant wrongfully and negligently allowed said dog to be at large, not restrained, muzzled or confined" and, as a result, the dog attacked and bit her.

On or about September 10, 2007, plaintiff served defendant with a notice for discovery and inspection demanding that defendant permit inspection of his dog at Syosset Animal Hospital in Syosset, New York. In his response, dated October 1, 2007, defendant objected to and rejected plaintiff's demand as "unduly burdensome, prejudicial, patently improper and patently irrelevant to the issues involved."

CPLR 3101(a) mandates "full disclosure of all matter material and necessary in the prosecution or defense of an action" and is to be liberally construed to [*2]accomplish that purpose (Matter of Poldrugovaz,50 AD3d 117 [2008]; see Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 [1968]). "The test is one of usefulness and reason" (Allen, 21 NY2d at 406).

In this action, plaintiff has the burden of establishing at trial that defendant's dog had vicious propensities and that defendant knew or should have known about these propensities

(Collier v Zambito, 1 NY3d 444, 446 [2004]; see Bard v Jahnke, 6 NY3d 592, 596-597 [2006].) Once that knowledge is established, defendant is subject to strict liability for "harm

done by the animal to another" even if he has "exercised the utmost care" in preventing the animal from doing such harm" (Bard, 6 NY3d at 597, quoting Restatement (Second) of Torts § 509(1) [1977]).

In light of plaintiff's burden, an expert opinion as to whether the dog shows any vicious tendencies is certainly useful to plaintiff and is relevant to the issues at trial (see Hayden v Sieni, 196 AD2d 573 [1993] (in dog bite case, the court held that defendant's expert, an animal behaviorist, was properly permitted to testify at trial that, based upon his examination of the defendant's dog prior to trial, he had concluded that the dog was not vicious); see also People v Goodfriend, 106 Misc 2d 989 [1981] (in criminal case where defendant, who was charged with raping plaintiff, alleged that if he had raped plaintiff, her dog would have barked or reacted in a violent manner, the court granted the motion of defendant to allow animal behaviorist to examine plaintiff's dog to determine, inter alia, if the dog had guard or attack training and to perform tests to determine if the dog exhibits any aggressive behavior in response to certain stimuli).

Accordingly, the court grants plaintiff's motion only to the extent that it orders that defendant produce his dog at a time and place mutually agreed upon by the parties to be examined by plaintiff's expert. That motion is in all other respects denied. Defendant's

cross motion for a protective order is also denied.^[FN1]

This constitutes the decision and order of the court.

E N T E R,

J. S. C.