In this dog bite case, defendants move for summary judgment dismissing plaintiff's complaint. Plaintiff opposes the motion and cross-moves for summary judgment on liability.

On March 9, 2008, at approximately 7:00 p.m., plaintiff was attacked by a Great Dane dog at defendants' residence. Plaintiff commenced this action and asserts claims sounding in negligence and strict liability.

Defendants now move for summary judgment, arguing that plaintiff's cause of action for negligence is not permitted by New York State Law. Regarding plaintiff's cause of action sounding in strict liability, defendants argue that the voluntary actions of plaintiff relieve defendants of liability. Defendants argue that plaintiff voluntarily entered defendant's residence, with knowledge of the dog's vicious propensities, and therefore voluntarily brought about injury to herself.

Plaintiff opposes the motion and cross moves for summary judgment on liability. Plaintiff argues that defendants were aware of the vicious propensities of the dog and therefore should be held strictly liable.

In reply, and in opposition to plaintiff's cross-motion, defendants argue that the cross-motion of plaintiff is untimely and should be denied in any event based upon the facts set forth in defendants' motion for summary judgment.

Regarding the timeliness of the cross-motion of plaintiff, the Court notes that it was not served within the time frames required by the CPLR, and was late by two days. The Court will consider the cross-motion in the interests of justice, noting that defendants had sufficient time to submit opposition papers.

Regarding plaintiff's first cause of action sounding in ordinary negligence, the Court concurs with defendants that case law that in New York is clear that cases involving personal injury by domestic animals may not proceed on theories of common law negligence (Bard v Jahnke, 6 NY3d 592 [2006]; Rose v Heaton, 39 AD3d 937, 939 [3rd Dep't 2007]; Alia v Fiorini, 39 AD3d 1068 [3rd Dep't 2007]). Based upon the foregoing, plaintiff's first cause of action is dismissed.

Regarding plaintiff's second cause of action, the Court finds that questions of fact preclude summary judgment to either defendants or plaintiff under the circumstances. It appears undisputed that both plaintiff and defendants were aware of vicious propensities of the dog in question at the time of plaintiff's attack. Both defendants and plaintiff were aware that the dog in question, in recent weeks, had bitten two other people, one being plaintiff's friend. The question then becomes if defendants are absolved of liability because plaintiff voluntarily put herself in the way of the dog, thereby bringing injury upon herself. The Court finds that questions of fact preclude judgment as a matter of law on the issue of if plaintiff voluntarily put herself in the way of the dog.

Plaintiff testified that on the day of the attack, just before the attack, plaintiff had [*2]observed another dog of defendants, a poodle, that had apparently gotten loose. Plaintiff indicated that she had water boiling on the stove and was therefore in a rush to get back to her house, but she retrieved the poodle and went to defendants' house, which is across the street from her own house. She testified that she knocked on the door and did not receive a response. She then opened the door to the residence, approximately five inches by plaintiffs' estimation, and yelled inside. The reason she did not open the door wider or immediately enter the residence was because of her awareness and fear of defendants' Great Dane. Plaintiff testified that despite only opening the door slightly, and with only her fingers inside the residence, defendants' Great Dane attacked her arm and dragged her into the residence, further attacking and biting her over her body.

While clearly plaintiff voluntarily opened the door to defendants' residence, based upon her testimony, she nevertheless did not believe that her actions in opening the door approximately five inches would put her in a situation where defendants' dog would be able to attack her. Based upon the facts presented and considering the facts in the light most favorable to plaintiff, the Court finds that there is a question of fact as to whether plaintiff voluntarily put herself in the way of the dog thereby bringing injury upon herself. The Court finds that reasonable persons could differ on the question of whether plaintiff's actions in opening the door of defendant's residence even a little, while knowing the dog's vicious propensities and size, constituted negligence on the part of plaintiff (see Vannucci v Vannucci, 180 Misc 2d 182, 184-85 [1999]; see also Muller v McKesson, 73 NY 195 [1878]; Morales v Quinones, 72 AD2d 519, 519 [1st Dep't 1979]; DiGrazia v Castronova, 48 AD2d 249 [4th Dep't 1975]; Scharf v Manson, 27 AD2d 613 [3rd Dep't 1966]).

Accordingly, it is

ORDERED, that defendants' motion for summary judgment is granted in part, as set forth above; and it is further

ORDERED, that plaintiff's cross-motion for summary judgment is denied.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: January 3, 2011

Troy, New York

________________________________________

Henry F. Zwack [*3]

Acting Supreme Court Justice