The defendant, Jose Ramirez, moves for an order pursuant to CPLR §3212 granting the defendant summary judgment dismissing plaintiff's complaint on the grounds that there are no triable issues of fact as a matter of law. The plaintiff submits opposition. The defendant submits a reply affirmation.

The plaintiff initiated this action for personal injuries sustained on October 5, 2005 when the defendant's dog bit the plaintiff on his nose. The plaintiff testified that he had been to the defendant's house with the defendant's son, also named Jose Ramirez, (hereinafter referred to as the "defendant's son"), on two occasions prior to the incident. The first time that the plaintiff was at the defendant's house, the defendant's dog, a Labrador/Golden Retriever mix breed named "Dude", barked, sniffed the plaintiff's hand and then stopped barking. The plaintiff testified that he fed the dog, the dog seemed quiet, the dog rolled on his belly. On the second occasion that plaintiff was the defendant's house, the dog was in the cage. On the date of the incident, the dog met the plaintiff at [*2]the front door, barked, sniffed plaintiff's hand and then wagged his tail. The plaintiff and the defendant's sat on the couch, ate Taco Bell, and began to watch a movie. The plaintiff and the defendant's son were watching the movie for approximately one hour, while the dog relaxed in front of the plaintiff, when the dog suddenly jumped on the plaintiff and bit the plaintiff's face. The plaintiff testified that he had no idea why the dog bit him, that "it was just a surge of energy. He jumped and went right towards my face". The plaintiff stated that the dog bit his nose and upper lip. The plaintiff testified that he was sitting, watching t.v., and was not moving prior to the dog bite. The plaintiff went into the bathroom to try to stop the bleeding. The defendant's son and the plaintiff left the house, went into the car, and defendant's son drove the plaintiff to the hospital. The plaintiff testified that the defendant's son told the plaintiff, in the car, on the way to the hospital, within minutes after the dog bite, "I can't believe he bit someone again".

The defendant's son testified that prior to biting the plaintiff, the defendant's dog had not bitten anyone before. The dog would be kept in a cage at times when strangers showed up at the door because of the dog's loud barking, and because the dog is "guarded" with strangers. The defendant's son stated that the dog was friendly with people he knows, wags his tail and greets them. The defendant's son provided that the plaintiff had been to his house approximately five or six times prior to the incident whereby the dog was initially guarded, and then became familiar with the plaintiff.

The defendant's son testified that on the day of the incident, the defendant's son let the plaintiff into the defendant's house, and at that point, the dog was in the cage. The defendant's son provides that the plaintiff told him that he felt bad for the dog and asked the defendant's son for permission to let the dog out of the cage. The plaintiff opened the gate to the cage, let the dog out, petted the dog, and sat back down to watch t.v. The dog sat in front of their feet, closer to the plaintiff. The defendant's son testified that approximately twenty minutes later, the plaintiff leaned forward while watching t.v., the dog then yelped, "so I assumed he stepped on him, and he just jumped up and was startled". The dog bit the plaintiff and then ran away. The defendant's son testified that he did not tell the plaintiff that the dog bit someone prior to the incident. The defendant's son stated that the only reason that the defendant's son could think of, as to why the plaintiff claims that the defendant's son told the plaintiff that "Rocco Tenebruso" was bitten by the defendant's dog prior to the incident, was because Rocco is the only friend the defendant's son introduced the plaintiff to.

The defendant testified that he was not home at the time of the incident. The defendant would have the dog go in the cage if someone rang the door bell because he made "too much noise". The defendant provides that the dog had never bitten anyone prior to the incident.

Rocco Tenebruso testified that he met the defendant's dog, Dude, when the defendant first got the dog, when the dog was a couple months old. Mr. Tenebruso saw the dog over 100 times, and the dog had never bitten him, never threatened to bite him, and did not or show any hostile tendencies. Mr. Tenebruso described the dog as playful, and affectionate. Mr. Tenebruso has seen the dog in the cage when "there is a lot of family over for family parties... [t]hey have a big family [*3]... [h]e's a big dog ... he bumps into people." Mr. Tenebruso has never seen the dog bite anyone else or act in a threatening manner towards anyone. Mr. Tenebruso met the plaintiff once, briefly.

An "owner of a domestic animal who either knows or should have known of the animal's vicious propensities will be held liable for the harm the animal cause as a result of those propensities". (Collier v. Zambito, 1 NY3d 444). A vicious propensity is the "propensity to do any act that might endanger the safety of persons and property of others in a given situation. (Id., quoting Dickson v. McCoy, 39 NY 400). Knowledge may be established with evidence of "prior acts of a similar kind of which the owned had notice". (Id.) While it is not necessary to prove a prior bite, (Bard v. Jahnke, 6 NY3d 592), proof constitutes knowledge that the dog had been known to "growl, snap or bare its teeth" or evidence showing how the animal was restrained. (Collier v. Zambuto, supra .) "In addition, 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 - albeit only when such proclivity results in the injury giving rise to the lawsuit." (Id.)

Here, issues of fact exist which may give rise to a finding that the defendant knew or should have known that the dog possessed a vicious propensity, or a proclivity to act in a way that puts others at risk. The defendant kept the dog in a cage not only for loud barking when people rang the bell, but also when a stranger came into the house as a "precaution". The record herein provides that the dog was "guarded" with strangers.

Additionally, the plaintiff testified that the defendant's son told the plaintiff, within minutes of being bitten, that he couldn't believe that the dog bit someone again. The defendant's son, who testified at a deposition, denied making such a statement. In any event, there is a reasonable inference that the statement made by the defendant's son was made contemporaneously with the observation. The statement may therefore qualify as a spontaneous declaration made while under the stress of nervous excitement resulting from an injury, or other startling event, during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection and deliberation. (People v. Caviness, 38 NY2d 227). When the existence of an issue of fact is even arguable or debatable, summary judgment should be denied. (Stone v. Goodson, 200 NYS2d 627 {8 NY2d 8} .) The role of the court is to determine if bonafide issues of fact exists, and not to resolve issues of credibility. (Gaither v. Saga Corp., 203 AD2d 239; Black v. Chittenden, 69 NY2d 665). Under these circumstances, a jury may conclude that the defendant was aware of the dog's vicious propensities. (Parente v. Chavez, 17 AD3d 648, citing Ballard v. Campbell, 304 AD2d 780 and Calarusso v. Dunne, 286 AD2d 37.)

In light of the foregoing, the defendant's motion for summary judgment is denied.

E N T E R : [*4]

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J.S.C.

Dated: June 23, 2008

cc: James Cammarata, Esq.

Shapiro, Beilly, Rosenberg & Aronowitz, LLP