Bernstein v Penny Whistle Toys, Inc.
2008 NY Slip Op 02463 [10 NY3d 787]
March 18, 2008
Court of Appeals
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 21, 2008


[*1]
Danielle Bernstein, an Infant, by Her Father and Natural Guardian, Roger Bernstein, et al., Appellants,
v
Penny Whistle Toys, Inc., et al., Respondents and Third-Party Plaintiffs. (And a Third-Party Action.)

Argued February 14, 2008; decided March 18, 2008

Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224, affirmed.

APPEARANCES OF COUNSEL

Rappaport, Glass, Greene & Levine, LLP, New York City (James L. Forde of counsel), for appellants.

Carol R. Finocchio, New York City, Lisa M. Comeau, and Law Offices of John P. Humphreys, for respondents.

Hawkins, Feretic, Daly & Maroney, New York City (Brian J. Daly of counsel), for third-party defendant-respondent.

{**10 NY3d at 787} OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs.{**10 NY3d at 788} [*2]

We held in Collier v Zambito (1 NY3d 444, 447 [2004]) that a plaintiff bitten by a dog could not recover because he was unable to show that the dog's owner knew or should have known of the dog's "vicious propensities." In Bard v Jahnke (6 NY3d 592, 599 [2006]), we held that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier."

Since there is no evidence in this case that the dog's owner had any knowledge of its vicious propensities, the Appellate Division was correct in affirming the dismissal of the complaint against defendants. Plaintiff's claims against third-party defendant were also properly dismissed, because there is no evidence that third-party defendant was negligent.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed, with costs, in a memorandum.