Dog's Bark Was Not Worse Than His Bite: Lester Schwab Obtains Affirmance of Dismissal of Dog-Attack Case

12/18/2015

Appellate Unit Good News

Dog’s Bark Was Not Worse Than His Bite:  Lester Schwab Obtains Affirmance of Dismissal of Dog-Attack Case

Plaintiff claimed that she was injured by a three-month old Golden Retriever puppy named Pouncey (after the football player Maurkice Pouncey and not in description of any behavioral tendencies on the part of the puppy).  The dog, owned by a golf course groundskeeper, was used to chase wild geese off the golf course and plaintiff claimed that this established his propensity to also attack people.

The Supreme Court dismissed the complaint and the Appellate Division, Second Department, affirmed, finding that discovery established that Pouncey never actually attacked or harmed the geese, and had never exhibited any threatening behavior towards any other creature, human or otherwise.  The Second Department concluded that overwhelming Court of Appeals precedent (a) precludes negligence claims for domestic animal attacks and (b) requires that to recover in strict liability, plaintiff must establish the owner knew or had reason to know of the animal’s vicious propensity.  The Second Department found that plaintiff failed to overcome both of these obstacles.

The winning motion was written by Harold Derschowitz, the winning appeal was written by Daniel Kotler.  Congratulations to both on jobs well done.

Cosgrove v. Trump National Golf Club,  ___ A.D.3d ___, 2015 WL 8827481 (2d Dep’t 2015)

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