New York Cases Dealing With ''Vicious Propensities''
The caselaw is not particularly consistent on whether it is sufficient to support a finding of "vicious propensities."
In McLane v. Jones (21 AD3d 1376, 801 N.Y.S.2d 644 [4th Dept 2005]), on a defendant's motion for summary judgment, the Fourth Department concluded that the plaintiff raised an issue of fact with evidence that the "defendant's dog would run along defendant's side-yard fence and would behave in an aggressive manner by jumping on the fence, casting her paws over the fence, and barking and growling as pedestrians passed by the house" (see id. at 1377.)
In Roupp v. Conrad (287 AD2d 937, 731 N.Y.S.2d 545 [3d Dept 2001]), on the defendants' motion for summary judgment, the Third Department concluded that "evidence that [the dog] would often jump on the fence in defendants' front yard and bark or growl at people walking by the house does not demonstrate vicious propensities" (see id. at 938.)
And in Rose v. Heaton (39 AD3d 937, 833 N.Y.S.2d 291 [3d Dept 2007]), also on the defendants' motion for summary judgment, the Third Department stated that where "all three of defendants' dogs rushed toward the fence," with the subject dog "leading the pack and . . . barking and growling," the "dog's behavior simply does not rise to the level of raising an issue of fact regarding his vicious propensities" (see id. at 939.)