In Tessiero v. Conrad, 186 AD2d 330, 588 N.Y.S.2d 200 (3d Dept 1992), the lower court granted the plaintiff's motion for partial summary judgment on liability based upon defendants' admissions that "their puppy had nipped their niece's hand about three weeks prior to the incident" that gave rise to the suit (see id. at 330.)

The Third Department reversed.

"The fact that an animal may have previously responded by biting does not automatically establish, as a matter of law, either vicious propensities or knowledge thereof." (Id.)