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Collier v. Zambito

807 N.E.2d 254 (2004)

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Collier v. Zambito

New York Court of Appeals

807 N.E.2d 254 (2004)

Facts

Charles and Mary Zambito (defendants) owned Cecil, a mixed-breed dog. The Zambitos would keep Cecil confined in the kitchen area behind a gate when visitors were over because Cecil would bark. In 1998, twelve-year-old Matthew Collier (plaintiff) came to the Zambitos’ home as a guest of the Zambitos’ son, Daniel. Collier had been to the Zambitos’ home on several prior occasions. Collier had been upstairs with several other children and went downstairs to use the bathroom, and Cecil began to bark. Mrs. Zambito put Cecil on a leash and invited Collier to approach the dog so that the dog could smell Collier and recognize him from prior visits. As Collier went to pet Cecil, Cecil lunged and bit Collier’s face. The Zambitos claimed that Cecil had never bitten anyone before. A complaint was filed on behalf of Collier. The Zambitos moved for summary judgment to dismiss the complaint for failure to state a cause of action because Collier did not demonstrate that the dog had vicious propensities or that the Zambitos should have known that the dog had vicious propensities. Collier cross-moved for summary judgment on the issue of liability. The court denied both motions and found that Collier established an issue of fact as to whether the Zambitos should have known of Cecil’s alleged vicious propensities. The Zambitos appealed, and the appellate court reversed, finding that Collier failed to raise an issue of fact as to whether the Zambitos were or should have been aware of Cecil’s vicious propensities. Collier appealed.

Rule of Law

Issue

Holding and Reasoning (Ciparick, J.)

Dissent (Smith, J.)

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