In Seybolt v. Wheeler, 42 AD3d 643, 839 N.Y.S.2d 830, (App. Div., 3d Dept., 2007), the court affirmed the Supreme Court's denial of a motion for summary judgment dismissing the complaint based upon an affidavit of the dog's Veterinarian and the Veterinarian's records from a specified time period which said that "patient is aggressive" and "tried to bite -- owner to muzzle!" There were two other instances in which the dog showed aggression towards a neighbor, backed the neighbor into the garage and started growling at him as well as testimony that the owner had actual knowledge of those events who "laughingly told this story to the neighbor."

The court found that only this type of prior knowledge and/or notice by the owner could create a triable issue of fact which would preclude summary judgment.

The court wanted the matter to go to the jury for a determination as to whether or not those specific instances constituted notice of the vicious propensities for the owner to be held strictly liable.