Recitation being made in accordance with CPLR 2219 (a), the following papers were read and considered in connection with the motion of Defendants AINSLEY A. LOPEz and LAUREN [*2]COSTABILE-LOPEZ, made pursuant to CPLR 3212, for an order granting them summary judgment dismissing the complaint of Plaintiff CLAUDETTE SCALA that was filed in this action:

• Notice of Motion; Defense Counsel's Affirmation in Support; Defense Counsel's Affirmation of Material Facts; Exhibits A-E (filed August 25, 2025)

• Plaintiff Counsel's Affirmation in Opposition; Exhibits A-B (filed September 3, 2025)

• Defense Counsel's Reply Affirmation in Further Support; Exhibits A-B (filed September 25, 2025)

Upon review of the aforesaid papers,^[FN1] the Court finds, holds, and determines as follows:

The pertinent facts of this action are stated in this Court's prior Decision and Order dated May 7, 2025, which is incorporated by reference herein (see Scala v Lopez, 85 Misc 3d 1278[A] [Sup Ct, Putnam County 2025]) (hereinafter referred to as the prior decision). For purposes of deciding the present motion, the Court shall set forth an abbreviated recitation of the relevant facts and procedural history.

On the afternoon of April 12, 2023, at approximately 4:30 p.m., the defendants' nine-year old son was walking their dog on a leash in the yard of defendants' home located in the Town of Carmel — described as a cul-de-sac property. According to plaintiff, the dog became aggressive upon seeing her passing by the defendants' property. Plaintiff then saw the dog "dragging" the defendants' son with the leash, coming "aggressively" towards her, when the dog bit plaintiff's right calf. Plaintiff allegedly suffered a puncture to her right calf where the dog bit her.^[FN2]

On June 15, 2023, plaintiff commenced this action against the defendants to recover damages for physical injuries that she allegedly sustained from the dog bite. Issue was joined on August 16, 2023, when defendants collectively interposed an answer, asserting therein, as relevant here, affirmative defenses of plaintiff's culpable conduct/contributory negligence and that the complaint fails to state a cause of action upon which relief can be granted. On October 9, 2024, plaintiff filed a note of issue and certificate of readiness for trial.

In its prior decision, this Court discretionarily denied the defendants' motion for summary judgment to dismiss the complaint as premature given the outstanding discovery relative to the dog's medical records. The rationale behind the Court's holding was that plaintiff identified potential evidence that might have been developed if she received additional discovery prior to responding to the motion, since plaintiff offered an evidentiary basis to suggest that the dog's records may lead to relevant evidence (see CPLR 3101 [a]). Indeed, the central inquiry in this case is whether the dog previously exhibited any vicious propensities of which the defendants had knowledge. Given the outstanding discovery, the Court declined to award summary judgment to the defendants on an incomplete record, thus denying their motion, with leave to renew, pending review of further discovery in connection with the dog's records. Discovery has been completed.

On August 25, 2025, the defendants filed a motion for summary judgment to dismiss the complaint. Plaintiff filed opposition papers on September 3, 2025. Defendants, in turn, filed reply papers on September 25, 2025. The motion is thus fully submitted.

A. The Deposition Transcripts

As a preliminary matter, the parties dispute the admissibility of copies of the transcripts of the parties' examinations before trial (EBT). The defendants submitted the parties' EBT transcripts in support of their motion.

Plaintiff, relying on CPLR 3116 (a), argues against admitting the parties' EBT transcripts. Specifically, she contends that her EBT testimony "must be stricken in its entirety" since she never had an opportunity to review or sign her EBT transcript because it was allegedly never served on her attorney; consequently, she was unable to "change any part of her testimony if it was incorrect."

Additionally, plaintiff claims that neither she nor her attorney ever received copies of the defendant's deposition transcripts; therefore, the defendants' EBT transcripts cannot be used to support their motion inasmuch as they do not constitute admissible evidence. The Court finds plaintiff's contentions regarding the deposition transcripts to be without merit.

CPLR 3116 (a), states in relevant part that "[t]he deposition shall then be signed by the witness before any officer authorized to administer an oath." "If the witness fails to sign and return the deposition within [60] days, it may be used as fully as though signed" (id.). "No changes to the transcript may be made by the witness more than [60] days after submission to the witness for examination" (id.).

Here, in reply to plaintiff's opposition, the defendants submitted evidence consisting of email correspondences, which established that plaintiff's certified EBT transcript had been sent to her attorney via email on May 28, 2024, at approximately 1:48 p.m., by a paralegal associated with defendants' law offices ^[FN3] ; and plaintiff's attorney replied to that email on the same day at 6:04 p.m., simply responding that the "EBT transcript of plaintiff [was] received" by him. Plaintiff's attorney apparently does not deny or dispute as much, given that he did not seek leave from the Court to file surreply papers to further address this narrow issue (see CPLR 2214 [c]). Moreover, it is undisputed that plaintiff did not submit an errata sheet within 60 days of her EBT (see e.g. Pagan v GPK, LLC, 227 AD3d 1524, 1526 [4th Dept 2024]).

The foregoing establishes that plaintiff failed to sign her EBT transcript and return it within 60 days. Accordingly, the Court holds that plaintiff's EBT transcript may be properly used in full as though it were signed, and that it was submitted in admissible form in support of the defendants' summary judgment motion (see CPLR 3116 [a]; Fleischmann v County of Suffolk, 226 AD3d 873, 874 [2d Dept 2024]; Farquharson v United Parcel Serv., 202 AD3d 923, 925 [2d Dept 2022]).

B. Law Governing Dog Bite Cases

It is well established that "the owner of a domestic animal who has actual or constructive knowledge of their animal's vicious propensities will be held strictly liable for harm caused as a result of those propensities" (Collier v Zambito, 1 NY3d 444, 446 [2004]). Legal precedent previously dictated that the sole means of recovery of damages for injuries caused by a dog bite was upon a theory of strict liability (see Bard v Jahnke, 6 NY3d 592, 597 [2006]; Collier v Zambito, 1 NY3d at 446-447). But the law recently changed.

In April of 2025, the Court of Appeals decided Flanders v Goodfellow (44 NY3d 57 [2025]), where it noted that Bard stood for the proposition "that there can be no common-law negligence liability when a domestic animal causes harm" (Flanders v Goodfellow, 44 at 60). Flanders — [*3]recognizing the principles of stare decisis in adhering to prior precedent — overruled Bard to the extent that the latter case barred negligence liability for harm caused by domestic animals (see Flanders v Goodfellow, 44 NY3d at 60).

To the extent that Bard held that a negligence cause of action is unavailable to a plaintiff for harm caused by a domestic animal (see Bard v Jahnke, 6 NY3d at 597), the Court of Appeals makes clear in Flanders that "[a] plaintiff who suffers an animal-induced injury [now] has a choice" to recover under either a theory of strict liability, or alternatively a theory of common-law negligence, or the plaintiff may "also assert both theories of liability" (Flanders v Goodfellow, 44 NY3d at 72).

In overruling its prior precedent that had prohibited a common-law negligence claim against owners of domestic animals that caused harm or injuries to a person, the Court of Appeals "announced a new 'two-pronged approach to liability for harms caused by animals'" (LaRocca v Lauer, 240 AD3d 867, 868 [2d Dept 2025], quoting Flanders v Goodfellow, 44 NY3d at 64-65). Now, a plaintiff can claim strict liability and/or common-law negligence as theories of liability for dog bite cases: "[a] plaintiff who suffers an animal-induced injury therefore has a choice. If the owner knew or should have known the animal had vicious propensities, the plaintiff may seek to hold them strictly liable. Or they can rely on rules of ordinary negligence and seek to prove that the defendant failed to exercise due care under the circumstances that caused their injury. Of course, a plaintiff might also assert both theories of liability" (Flanders v Goodfellow, 44 NY3d at 72; see DeBlase v Hill, 239 NYS3d 770, 786-788, 2025 NY Slip Op 25156 [Sup Ct, Kings County 2025] [containing a more expansive discussion of the Flanders case]).

Here, plaintiff commenced this action against the defendants to recover damages for her personal injuries asserting both theories of liability. In her complaint, plaintiff sufficiently alleged causes of action alleging strict liability and, in effect, common-law negligence based on the defendants' failure to exercise reasonable care (see complaint, ¶ 5-8, 10-11).^[FN4] The Court recites the governing legal standards before discussing each of her claims in turn.

C. Summary Judgment Standard

CPLR 3212 (b) states that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." A trial court deciding a motion for summary judgment must view the facts "in the light most favorable to the non-moving party" (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). A motion court deciding a summary judgment motion may not "make credibility determinations or findings of fact" (Vega v [*4]Restani Constr. Corp., 18 NY3d 499, 505 [2012]). A motion for summary judgment may be granted only where the movant "tender[s] sufficient evidence to demonstrate the absence of any material issues of fact" and, once this prima facie showing is made, the non-movant fails "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

"In the context of a defendant's motion for summary judgment in a dog bite case, the defendant bears an initial burden to demonstrate that, prior to the incident giving rise to the lawsuit, he or she was without knowledge that the animal possessed any vicious or dangerous propensities. Only if the defendant meets this initial burden, does the burden then shift to the plaintiff to raise a triable question of fact as to whether the defendant knew or should have known that his or her dog had vicious propensities. The proof of such vicious propensities is not limited to evidence of a prior bite, but may include a showing that the dog had been known to engage in aggressive behavior, snap, growl or bare its teeth. In fact, it has been held that vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" (J.S. v Mott, 217 AD3d 1170, 1171 [3d Dept 2023] [internal brackets, ellipses, quotation marks, and citations omitted]).

Thus, on their motion for summary judgment, the defendants bear the initial burden to demonstrate that, prior to the dog-bite incident giving rise to this lawsuit, they were without knowledge that the subject dog possessed any vicious propensities. If they meet their initial burden, then the burden shifts to plaintiff to raise a genuine triable question of fact as to whether the defendants knew or should have known that their dog had vicious propensities.

D. Plaintiff's Strict Liability Claim

The defendants argue that plaintiff has no cause of action sounding in strict liability. More specifically, they contend that the dog did not have vicious propensities and that they did not know nor have reason to know of any such alleged propensities. Defendants further maintain that they never observed the dog behave aggressively, that no one ever complained to them of such, and that the dog had never bitten anyone prior to this incident. In support of their motion, defendants submitted, among other things, the pleadings, copies of the transcripts of the parties' EBTs, and discovery documents exchanged between counsel.

Plaintiff, in opposition, contends that the defendants had "actual and constructive notice" that the dog had vicious propensities, that they knew about the dog's aggressive tendencies, and the defendants failed to produce any evidence that the dog had no vicious propensities. Plaintiff posits that because the deposition testimony disclosed that the defendants' nine-year-old son was walking a 70-pound dog on a leash solely on defendants' property prior to and on the date of the incident, [*5]defendants "were aware of the [dog's] vicious propensities."^[FN5]

In order to recover damages for a dog bite under a theory of strict liability, "[a] plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities" (King v Hoffman, 178 AD3d 906, 908 [2d Dept 2019] [internal quotation marks and citations omitted]).^[FN6] "Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" (id. [internal quotation marks and citations omitted]). And thus, "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" (Collier v Zambito, 1 NY3d at 447; see Miller v Wamp, 239 AD3d 1391, 1391-1392 [4th Dept 2025]).

"However, normal canine behavior does not establish vicious propensities, and rambunctious behavior will show awareness of a vicious propensity only if it is the very behavior that resulted in a plaintiff's injury" (M.B. v Hanson, 168 AD3d 706, 708 [2d Dept 2019] [internal brackets, quotation marks, and citation omitted]). The knowledge of the dog owner(s) "may be established with evidence of 'prior acts of a similar kind of which the owner had notice'" (id., quoting Collier v Zambito, 1 NY3d at 446).

Here, the Court finds that defendants, through their deposition testimonies, satisfied their initial burden of demonstrating that they did not know that their dog possessed any vicious or dangerous propensities, prior to the dog-bite incident giving rise to this action. During his deposition, defendant Ainsley Lopez — who was working and not present at the time of the underlying incident — testified that their home has a front lawn which faces the street and the dog would just observe people walking or driving by as they passed their home. Also, he testified that their two children or codefendant Lauren Costabile-Lopez would normally walk the dog, who would always be connected to a leash. Defendant Ainsley Lopez stated that based upon his knowledge, the dog never barked when receiving mail deliveries, adding that the dog had a habit of sitting when mail or packages were being delivered. He further testified that he never witnessed the dog chase any person who was walking or jogging by their property. Throughout his deposition, defendant Ainsley Lopez maintained that the dog never had any prior incident of injuring another person or [*6]animal.

Codefendant Lauren Costabile-Lopez testified that the defendants owned the dog for about three years prior to the subject incident and that she took the dog for regular-checkups at the veterinarian. She denied that the dog acted viciously toward mail carriers and stated that the dog never aggressively barked or reacted angrily toward anybody who walked past their home. Codefendant Lauren Costabile-Lopez was present at her home on the day of the incident, but she did not personally observe the dog bite. She testified that her daughter had informed her that their dog bit plaintiff near the mailbox which is situated near the front curb of the defendants' house.

Also, codefendant Lauren Costabile-Lopez testified that the children witnessed the full incident, and her daughter relayed to her that the dog dragged the defendants' nine-year-old son on the leash before the dog bit plaintiff. When asked whether the dog had ever displayed any vicious or angry propensities toward anyone including mail carriers who delivered mail and if the dog had any prior incident of attacking someone, codefendant Lauren Costabile-Lopez answered "never." She did not recall any time when the dog barked at a mail carrier, and she denied that the dog acted angrily to anyone walking in the street when they passed the front of their house.

The defendants thus established their prima facie entitlement to judgment, as a matter of law, dismissing so much of the complaint seeking to hold them strictly liable for plaintiff's alleged injuries by demonstrating that they were not aware, nor should have been aware, that their dog had vicious propensities (see LaRocca v Lauer, 240 AD3d at 868; Sattler v Passaro, 211 AD3d 983, 984 [2d Dept 2022]). According to the defendants, their dog had never bitten any person or animal prior to the underlying incident. The evidence established that their dog resided with the defendants' two small children without a prior incident and was allowed to sit on their deck and roam around the front lawn of defendants' house (see Drakes v Bakshi, 175 AD3d 465, 466 [2d Dept 2019]). The Court holds that the defendants established by undisputed proof in admissible form that the dog had never before bitten anyone and that it had never growled or bared its teeth when someone approached or otherwise exhibited vicious or dangerous propensities (see CPLR 3212 [b]).

In opposition to the defendants' motion, the Court finds that plaintiff failed to raise a triable issue of fact to deny summary judgment in favor of the defendants. In this regard, plaintiff submitted the affirmations of two nonparties who aver that they were familiar with the dog's vicious behaviors: (1) Marek Gregorowicz, a resident of the Town of Carmel who lives in the same neighborhood as the defendants, and (2) Donna Perlett, a postal mail carrier who delivered mail to the defendants' home. In addition, plaintiff submits a purported, undated letter correspondence from an alleged neighbor of the defendants — namely, Christina Miller.

As an initial matter, the Court notes that both Gregorowicz and Perlett's affirmations, while signed and affirmed under the penalties of perjury, are undated and are not in admissible form [*7]because they do not "substantially" conform with the required language set forth in CPLR 2106 (a)^[FN7] — a defect which requires their exclusion from consideration on this motion. Because their affirmations fail to comport with the recently amended statutory language in CPLR 2106 (a), they are inadmissible. But even if Gregorowicz and Perlett's affirmations substantially complied with CPLR 2106 (a), they are of minimal to no evidentiary value for the following reasons.

In his affirmation, Gregorowicz states that he passed by and "walked through" the street where the defendants' home is located, often seeing the dog "on the side deck" of defendants' house. Gregorowicz states therein that he has seen the dog display vicious propensities when the dog saw him passing by on the street, noting that the dog acted "in a very aggressive manner with very vicious growling and barking." Also, Gregorowicz expressed fear of the subject dog, stating that it "worries" him that the dog would "attack[]" him if the dog "got out." Lastly, Gregorowicz notes that he was "not surprised" that the dog attacked plaintiff, further adding that he no longer walks up the street where defendants' home is situated after he learned of the dog-bite incident that is the impetus for this lawsuit.

Perlett, in her affirmation, states that she is a postal worker who regularly delivered mail to the defendants' home and that there were "many times" when she saw the dog on the deck "barking excessively and viciously towards me," which "scare[d] the hell out of [her]." Perlett notes that the dog is "always outside in all sorts of weather" and that she, too, was "not surprised" to learn that plaintiff was bitten by the dog.

"Knowledge of 'normal canine behavior,' such as running around, pulling on a leash and barking at another dog or passersby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities" (Lobo v Messina, 237 AD3d 683, 683-684 [2d Dept 2025]; Brooks v Adell, 211 AD3d 792, 793 [2d Dept 2022]). The dog was permitted to be in the front yard area and on the side deck of the defendants' home. Other than being leashed, the record does not reveal that the dog was tethered or restrained in some particular manner when the dog was outside. Thus, contrary to plaintiff's contention, the evidence submitted by the parties through their [*8]deposition testimony does not present a triable issue of fact. Plaintiff's lone allegation that the dog dragged defendants' son on a leash and bit plaintiff does not raise a triable issue of fact as to whether the defendants knew or should have known of the dog's vicious behaviors.

Likewise, plaintiff's submissions consisting of the affirmations of Gregorowicz and Perlett have little to no evidentiary value. The affirmations submitted by a neighbor (Gregorowicz) and the postal carrier (Perlett), stating that the dog barked and growled at them viciously and aggressively, and that they were subjectively fearful of the dog, without more, is insufficient to raise a triable issue of fact as to whether the defendants knew or should have known that the dog had vicious propensities. Neither the neighbor (Gregorowicz) nor the postal carrier (Perlett) stated or indicated in their respective affirmations if they "ever informed the defendants of the dog's behavior or if any of the behavior described ever occurred in the presence of the defendants" (Brooks v Adell, 211 AD3d at 794; see Faraci v Urban, 101 AD3d 1753, 1754 [4th Dept 2012]).

Plaintiff also failed to submit evidence in admissible form establishing that the defendants actually received the purported unsworn letter by Miller. Her letter, which is undated and attached to the attorney's affirmation, is "'not evidentiary proof in admissible form'" (Banco Popular N. Am. v Victory Taxi Mgt., Inc., 1 NY3d 381, 384 [2004]; quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Fisher v Ciarfella, 300 AD2d 1028 [4th Dept 2002]; Washington v City of Yonkers, 293 AD2d 741, 742 [2d Dept 2002]).

Miller's letter is generally addressed "[t]o whom it may concern," with a subject line of "Regarding Vicious Dog on 3 White Pine Ct." No formal residential address is set forth in her letter. In it, Miller states that she is "writing to formally complain about a recurring issue . . . while walking in [the] neighborhood." She writes that "[o]n multiple occasions, a dog residing at 3 [W]hite [P]ine [C]ourt in Carmel has exhibited aggressive behavior towards me," and that "every time" she walks past the defendants' property, "the dog barks and acts in a vicious manner." Miller concludes the letter by stating that "[t]his behavior is concerning due to [the dog] always [being] left outside on [the] deck when I see him."

Notwithstanding the many questions surrounding Miller's correspondence, there is nothing in the record confirming that any (or both) of the defendants actually received a copy of Miller's letter, nor were they asked about it in their respective depositions. Plaintiff has offered no reason or acceptable excuse for failing to obtain Miller's statements in admissible form, inasmuch as she purportedly authored that letter correspondence (see e.g. Grasso v Angerami, 79 NY2d 813, 814 [1991]; Villager Constr. v Kozel & Son, 222 AD2d 1018, 1019 [4th Dept 1995]). In sum, Miller's undated letter assertedly relayed to the defendants does not constitute competent proof in admissible form sufficient to generate a triable issue of fact (see Nicolaides v Nyack Hosp., 279 AD2d 617, 618 [2d Dept 2001]; Ultra Diagnostics Imaging v Liberty Mut. Ins. Co., 9 Misc 3d 97, 99 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]).

Indeed, "[t]here is no evidence from which to infer that the dog exhibited vicious propensities at a time when [the defendants were] present on the property[,] nor is there any evidence that anyone communicated any complaints about the dog to [the defendants]" (Le Pore v DiCarlo, 272 AD2d 878, 878 [4th Dept 2000], lv denied 95 NY2d 761 [2000]). Plaintiff submits no admissible proof in opposition to the contrary. The defendants insist that there had never been any written or verbal complaints pertaining to the dog prior to the subject incident.

Plaintiff seemingly argues that, when viewed cumulatively, the affirmations of Gregorowicz and Perlett, combined with Miller's correspondence, raise a triable issue of fact. The Court disagrees. Based on the record, neither of those three nonparties were deposed. Plaintiff's sheer speculation that the defendants might have known about the dog's aggressive tendencies is insufficient to raise a triable issue of fact in opposition to summary judgment (see Faraci v Urban, 101 AD3d at 1754). Moreover, neither Gregorowicz and Perlett's assertions that the dog had a reputation for aggressively barking and growling, nor the fact that defendants' son was dragged on a leash by the 70-pound dog on the date of the incident, are sufficient to impute knowledge of the dog's vicious propensities to the defendants (see Brooks v Adell, 211 AD3d at 793).

Plaintiff, in opposition, has asserted only that the defendants must have been aware of the dog's vicious propensities because they allowed their young son to walk the dog on a leash "solely on their property" and, further, that the defendants had knowledge of the dog's aggressive tendencies. The Court is unpersuaded by plaintiff's argument. In short, plaintiff's "attempt to impute such knowledge to [the defendants] through conjecture, surmise[,] and suspicion is clearly insufficient to defeat [the defendants'] motion for summary judgment" in a dog-bite case (Shannon v Schultz, 259 AD2d 937, 938 [3d Dept 1999], lv denied 93 NY2d 816 [1999]). Further contrary to plaintiff's belief, "the nature of the attack is insufficient to demonstrate prior knowledge of vicious propensity of the dog" (J.S. v Mott, 217 AD3d at 1173).

On this record, there is no evidence from which to infer that the dog exhibited vicious propensities at a time when the defendants were present at their home (see Le Pore v DiCarlo, 272 AD2d at 878). "Unfortunately, this matter involves a vicious bite by the dog, but the operative question for strict liability to apply is whether [the] defendant[s] knew or should have been on notice as to the possibility of the bite. Here, plaintiff has simply not submitted any evidence to demand that a jury answer this question" (J.S. v Mott, 217 AD3d at 1174). Thus, that branch of the defendants' motion for summary judgment to dismiss the strict liability claim is granted (see LaRocca v Lauer, 240 AD3d at 868; Castillo v Berne, 230 AD3d 557, 559 [2d Dept 2024]).

E. Plaintiff's Common-Law Negligence Claim

The Court also dismisses so much of the complaint alleging a common-law negligence claim. Plaintiff's negligence claim is predicated on the ground that a dog-bite incident like the one that occurred here was foreseeable, inasmuch as a 70-pound dog "with a history of barking and attempting to go at strangers" should only be walked by an adult or responsible party, not a nine-[*9]year-old child who is physically unable to restrain the dog. The Court is unconvinced.

"The elements of a cause of action alleging common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach was a proximate cause of the plaintiff's injury" (Esen v Narian, 155 AD3d 612, 613 [2d Dept 2017]; see Federico v Defoe Corp., 138 AD3d 682, 684 [2d Dept 2016], lv denied 28 NY3d 912 [2017]). In order to succeed on her negligence claim, plaintiff must prove, inter alia, that the defendants' dog did in fact possess vicious propensities and also that they knew or should have known of the dog's vicious propensities (see DeVaul v Carvigo Inc., 138 AD2d 669, 669 [2d Dept 1988], lv denied 72 NY2d 806 [1988]). The Court holds that plaintiff failed to do that here in opposition.

The gravamen of this action hinges on the defendants' knowledge, as the dog owners, that their dog had vicious propensities. "[O]ne who keeps a vicious dog, with knowledge of its savage and vicious nature, is presumed to be negligent if he does not keep the animal secure from injuring others" (Lovell v Haas, 262 AD 49, 50 [1st Dept 1941]). Vicious acts exhibited by a dog typically include biting, jumping and lunging on people, and running at large in a roadway or onto passing traffic (see Althoff v Lefebvre, 240 AD2d 604, 604 [2d Dept 1997]; Hyde v Clute, 235 AD2d 909, 910 [3d Dept 1997]). "[L]ack of knowledge of a vicious nature is a complete bar to recovery since a plaintiff may not establish facts from which an inference of negligence may be drawn. The rule is apparently grounded in the concepts of foreseeability and notice" (Ayala v Hagemann, 186 Misc 2d 122, 123 [Sup Ct, Richmond County 2000]).

Initially, the undersigned notes that "liability cannot be premised solely on the fact that the defendant[s] left the dog unrestrained" (Althoff v Lefebvre, 240 AD2d at 604). Second, the Court rejects the contention of plaintiff that the leashing of the dog constitutes some evidence of negligence. Even if the dog was usually leashed when the dog was being walked, such does not affect the essential issue of whether the dog was vicious and, if so, whether the defendants had knowledge thereof (cf. Arcara v Whytas, 219 AD2d 871, 872 [4th Dept 1995]). In other words, plaintiff's heavy reliance upon the dog being leashed, in and of itself, does not raise a question of fact regarding the dog's vicious propensities (see id.).

All things considered, the parties' evidence on this motion does not raise a triable issue of fact as to common-law negligence — i.e., whether the defendants had actual or constructive knowledge of their dog's propensity to aggressively bark or growl at people, including neighbors or postal carriers (compare Flanders v Goodfellow, 44 NY3d at 63). The defendants demonstrated their prima facie entitlement to summary judgment on the negligence cause of action by testifying at their depositions that their dog never previously attacked or jumped on anyone, never broke away from his leash, and never ran away.

Plaintiff, in opposition, failed to come forward with evidentiary proof in admissible form to [*10]raise an issue of fact as to whether the defendants had actual or constructive notice that the dog was vicious or had violent tendencies (see CPLR 3212 [b]; Sinon v Anastasi, 244 AD2d 973, 973 [4th Dept 1997]). As with the strict liability cause of action, the Court holds that plaintiff failed to meet her burden of establishing as a matter of law that the defendants had knowledge of their dog's tendency to engage in behavior that might endanger someone. Consequently, plaintiff's common-law negligence claim must also be dismissed in its entirety (see Felgemacher v Rugg, 28 AD3d 1088, 1089 [4th Dept 2006]; Zelman v Cosentino, 22 AD3d 486, 486-487 [2d Dept 2005]; see also Cameron v Harari, 19 AD3d 631, 631 [2d Dept 2005]; Slacin v Aquafredda, 2 AD3d 624, 625 [2d Dept 2003]).

To the extent not specifically mentioned herein, the parties' remaining contentions have been examined and determined to be without merit. Any other relief requested that is not squarely addressed herein is either rendered academic or denied based on this decision. Accordingly, it is hereby:

Ordered that the motion (mot. seq. no. 2) of the Defendants AINSLEY A. LOPEz and LAUREN COSTABILE-LOPEZ, made pursuant to CPLR 3212, for an order granting them summary judgment dismissing the complaint in its entirety is GRANTED; and it is further

Ordered that the underlying complaint Deis dismissed with prejudice; and accordingly, this action is disposed in toto.

The foregoing decision constitutes the order of the Court.^[FN8]