This case from SDNY illustrates two points:  the first is that dog bite cases really do require a history of a first bite, or proof that the dog in question was really really dangerous.  The second is that an attorney ignors a notice to admit at his peril.  Here, the attorney was reminded in writing and during a magistrate judges telephone conference.

"Because Plaintiffs did not respond to Defendant’s Request to Admit, dated September 13, 2005, Plaintiffs have admitted the Facts stated in the Request.

Federal Rule of Civil Procedure 36 permits a party to serve on another party a written request to admit any relevant fact. Fed. R. Civ. P. 36(a). The fact is deemed admitted unless, within thirty days of service of the request, the party to whom the request is directed serves a written answer or objection. Id. Any matter thus admitted is conclusively established, unless the court on motion permits withdrawal or amendment of the admission. Id. 36(b). Plaintiffs never answered or objected to Defendant’s Request to Admit, and they never moved to withdraw or amend their admission.

Plaintiffs’ attorney gave two reasons for the failure to respond: (1) a malfunctioning e-mail system and (2) a paralegal’s mistaken belief that the response to Defendant’s Local Rule 56.1 Statement was the response to the Request to Admit. (Park Aff. ¶¶49-50.) Neither explanation is persuasive. The condition of counsel’s e-mail system is not relevant, because the Request to Admit was served by overnight mail. (See Flanagan Reply Aff. ¶4.) Regardless of any confusion on the part of Plaintiffs’ counsel’s staff, Defendant’s counsel directly reminded Plaintiffs’ counsel about the Request to Admit by letter, and also did so in passing during a telephone conference with the chambers of Magistrate Judge Maas.2 (See id., Ex. A; id., Ex. B, at 4.)

"New York law holds the owner of a domestic animal strictly liable for injuries caused by the animal if the owner knew or should have known of the animal’s "vicious propensities." Collier v. Zambito, 807 N.E.2d 254, 257 (N.Y. 2004). An animal has vicious propensities if it is disposed to endanger the safety of people or property. Id. at 256 (citing Dickson v. McCoy, 39 N.Y. 400, 403 (1868)). Knowledge of a dog’s vicious propensities can be established by proof that the owner knew the dog had bitten someone in the past or that the dog had been known to growl, snap, or bare its teeth.