Court: Pooch Not Proven Dangerous in Dog-Bite Case

, New York Law Journal

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After getting attacked while trying to free a dog's tangled paw in Central Park, a woman was bitten by a Manhattan appellate court that tossed her personal injury action.

The Appellate Division, First Department overruled a lower court to hold that a dog's purported history of growling at a neighbor's dogs was not enough to find the pet had a propensity for violence.

"No court has found that a dog's growling at one or two other dogs is sufficient to establish vicious propensities," the panel stated, "and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog's vicious propensities."

Danielle Gervais was reportedly bitten or scratched in the face in July 2009 as she tried assisting Ruby, a German Shepard-Collie mix, whose hindpaw was caught in a Central Park fence. Gervais sued the owner, Maresa Laino, who was rushing over as the incident unfolded.

Laino offered affidavits from neighbors and dog owners who said Ruby had a gentle disposition. She also presented evidence that Ruby had been awarded the American Kennel Club's "Good Citizen certification."

But Gervais pointed to testimony from another neighbor who said before the incident, Ruby growled and scuffled twice with her two dogs. The neighbor said she complained to Laino about the dog, but noted Ruby had not been aggressive to her or bitten her dogs.

Manhattan Supreme Court Justice Doris Ling-Cohan (See Profile) denied Laino's summary judgment motion in April 2013 and the Appellate Division, First Department on Dec. 31 unanimously reversed in an unsigned opinion.

Katherine Sherman of Wrobel Schatz & Fox represented Laino. Matthew Gammons of Rosenbaum & Rosenbaum represented Gervais.

Presiding Justice Luis Gonzalez (See Profile) and Justice Peter Tom (See Profile), Dianne Renwick (See Profile), Helen Freedman (See Profile) and Darcel Clark (See Profile) decided Gervais v. Laino, 11136.

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