Bitten by a Dog With a History of Biting in New York

Attorney Answer

A dog with a history of biting is the fact New York liability turns on, and the statute that names it is Agriculture and Markets Law § 123. What you describe — a fourth bite, nerve damage, a severe infection and an abscess, and time out of work — is both a civil claim and the kind of report that starts a dangerous-dog proceeding, and those two things travel on separate tracks.

The statute gives a bite victim one thing directly. Subdivision 10 provides: "The owner or lawful custodian of a dangerous dog shall, except in the circumstances enumerated in subdivisions four and eleven of this section, be strictly liable for medical costs resulting from injury caused by such dog to a person, companion animal, farm animal or domestic animal." Strict liability there means the medical costs do not depend on proving the owner was careless. It also means what it says: medical costs, and not the rest of the loss.

The rest of the loss comes through the older route the section preserves. Subdivision 12 provides: "Nothing contained in this section shall limit or abrogate any claim or cause of action any person who is injured by a dog with a vicious disposition or a vicious propensity may have under common law or by statute. The provisions of this section shall be in addition to such common law and statutory remedies." The common-law rule that sentence points to — an owner's responsibility where the animal had a known propensity to do what it did, and the owner knew or should have known of it — is judge-made. Three earlier bites is precisely the kind of history that rule is about, and the records proving them are usually held by a municipality rather than by the owner.

The section's other subdivisions describe the public side. Subdivision 1 lets a person who witnesses an attack complain to a dog control officer or police officer, and requires the officer to commence a proceeding where there is reason to believe the dog is dangerous. Subdivision 2 sets out the hearing before a municipal judge or justice, the clear-and-convincing standard, and the orders available — evaluation, secure confinement, leashing, muzzling, or a liability insurance policy. Subdivision 3 lists aggravating circumstances that permit more, including a known vicious propensity evidenced by a previous unjustified attack causing serious physical injury. Subdivisions 6 and 7 add civil penalties against an owner who negligently permits a bite. Subdivision 4 lists the circumstances in which a dog will not be declared dangerous, which is why the full account of how the attack happened matters.

Your civil claim runs on CPLR 214: three years for "an action to recover damages for a personal injury except as provided in sections 214-b, 214-c, 214-i and 215". And if the owner argues you contributed to what happened, CPLR 1411(a) answers it: "Except as provided in subsection (b) of this section, in any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery. The amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages."

What you can do

1. Keep every medical record — the wound care, the infection treatment, the drainage of the abscess, and any nerve testing — and follow through on every referral.

2. Identify the dog's owner and the address where the dog is kept, and photograph the injuries as they heal.

3. Ask the municipality's dog control officer or the police department, in writing, for records of prior complaints or bites involving that dog.

4. Document the time out of work with pay records and a written statement of your restrictions from the treating provider.

5. Take the medical records and the prior-bite records to a New York attorney before you speak with a homeowner's or renter's insurer, sign a medical authorization, or accept payment of a bill.

⏱ Time limits apply. CPLR 214(5) keys its three years to the date of the attack. The dangerous-dog proceeding under Agriculture and Markets Law § 123 moves on its own much faster timetable and is meant to be started promptly, and other periods can apply if a landlord, a business or a public entity is involved. What governs your situation depends on facts a page cannot see, so bring the dates to a New York attorney for review instead of counting them off a calendar.