dissents and votes to affirm the judgment appealed from with the following memorandum: I do not agree with my colleagues that there was sufficient evidence to create a question for the jury as to the defendant’s liability. I conclude, as did the Trial Justice, that the evidence, when viewed even in a light most favorable to the plaintiff, failed to establish that the defendant’s horse had previously exhibited the vicious propensity to do the injurious act complained of and that the defendant had prior knowledge thereof (see, Hosmer v Carney, 228 NY 73; Buchholz v Shapiro, 48 AD2d 694). It is clear from a careful reading of his testimony that the defendant’s employee Grandison never concluded that the defendant’s horse “Dee Dee” had a propensity to kick, nor did he so inform the defendant. It is evident rather that Grandison knew he was dealing with an inexperienced horseowner in the defendant and was instructing him generally to maintain some distance between himself and his horse’s hindquarters.
Absent a showing that the horse had this propensity and the defendant knew it, there can be no liability (see, Benoit v Troy & Lansingburgh R. R. Co., 154 NY 223, 225-226), and thus, in my opinion, the defendant was properly granted judgment as a matter of law (see, Appel v Charles Heinsohn, Inc., 91 AD2d 1029, affd 59 NY2d 741).