Legal Question in Personal Injury in New York

Re: how to prove what i knew or should have known

The SOL's in NY is 3 years. Since they sued your insurance co, there must be an exact date of occurrence in that lawsuit so contact your insurance co and find out.

The date they file the lawsuit is the date the action commenced for purposes of SOL, even if you didn't get served right away and even though you have 30 days to answer.

You MUST plead as an affirmative defense that the claim is bared by SOL even if you are still not sure of exact date or else you lose the right to plead it later.

They can prove you knew or "should have known" about the dog because your brother knew ("apparant agent") or he could hear the dog barking, etc. BUT they can not prove you knew of the dogs vicious propensities unless you (your brother) saw/knew the dog attacked (tried to attack) somebody before.

Your brother should move for dismissal based on his lack of ownership. Although, if he was in fact acting on your behalf and with your authority as the "owner" he may be found to have been your "agent".

Re: Get this to your Insurance Co. Right Now.

Be sure to send this complaint to your insurance company immediately. They will defend the action for you as long as you tell them about the lawsuit timely.

Be sure it is to the insurance co that insured your property at the time of the incident.

Re: how to prove what i knew or should have known

I defended a similar case a few years ago. I represented the landlord of a housing complex whose tenant had a dog (also in violation of a "no pet" clause in the lease) who bit another tenant (actually a young child). I was successful in having the case dismissed against my client for failure to prove "vicious propensities" of the dog, which is a requirement in New York. The fact that you did not even know that the dog was around would seem to indicate that you have a strong defense that you were unaware of any vicious propensities.

With respect to the statute of limitations, which is 3 years in New York, it is unclear when the suit against you was filed. If filed (and an Index number purchased) within 3 years, that would meet the statute of limitations requirement, provided it is then served timely upon you. I am also curious about the prior suit against your insurance company. Who exactly is the named defendant, what is that for and is that still pending?

Finally, as to the "on or about" phrase, that is commonly used in pleadings. In the end, the plaintiff has to prove the exact date of incident.

I hope this responds to your inquiry. Any other questions, please feel free to contact me.