| Dykeman v Heht |
| 2008 NY Slip Op 05879 [52 AD3d 767] |
| June 24, 2008 |
| Appellate Division, Second Department |
| Crysta Dykeman et al., Respondents, v Raymond Heht,Appellant. |
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In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated June 4,2007, as denied that branch of his motion which was for summary judgment dismissing the cause ofaction sounding in strict liability.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
On the evening of December 31, 2004 the then three-year-old infant plaintiff Crysta Dykeman,along with her parents and her older brother Thomas, arrived as invited guests at the defendant's home.The occasion marked the family's second visit to the defendant's home. According to the depositiontestimony of Crysta's parents, upon their family's arrival for both visits, the defendant's dog barked,snarled, growled, and bared its teeth at them, but on each occasion the dog then complied with thedefendant's order to lie down. Upon entering the home for the second visit, Crysta's mother told Crystanot to go near the dog. In his deposition testimony, the defendant denied that his dog had ever growled,snarled, or bared its teeth at Crysta or her family. Also according to the defendant's depositiontestimony, prior to this incident, in the eight years he had owned the dog, it had never bitten anyone. Itis undisputed that at no point during the two visits did the defendant restrain or muzzle the dog, nor didhe supervise the dog in Crysta's presence.
The first visit proceeded without incident. However, approximately 30 to 45 minutes after Crysta'sarrival for the second visit, while no one was directly supervising either Crysta or the dog, [*2]and with no evidence that Crysta provoked the dog, the dog bit Crysta inthe face, which allegedly resulted in injuries including, inter alia, a severed left lower eyelid and lowerleft tear duct, and a lacerated upper and lower left lip. Crysta's injuries required surgical repair, andafter initially being transported by ambulance to Vassar Brothers Hospital, she was ultimately treated atthe New York Eye and Ear Infirmary.
Crysta, with her mother suing derivatively, commenced this action to recover damages for herpersonal injuries, asserting, among other things, a cause of action sounding in strict liability. After joinderof issue and completion of discovery, the defendant moved, inter alia, for summary judgment dismissingthe cause of action sounding in strict liability, which the Supreme Court denied.
Preliminarily, the drastic remedy of summary judgment should be granted only if there are nomaterial issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Akseizer vKramer, 265 AD2d 356 [1999]). On a motion for summary judgment, the function of the court isnot to determine issues of fact or credibility, but merely to determine the existence of such issues (see Tunison v D.J. Stapleton, Inc., 43 AD3d910 [2007]; Kolivas v Kirchoff, 14AD3d 493 [2005]; Scott v Long Is. Power Auth., 294 AD2d 348 [2002]). Moreover,since summary judgment is the procedural equivalent of a trial, it must be denied if any doubt exists asto a triable issue or where a material issue of fact is arguable (see Celardo v Bell, 222 AD2d547, 548 [1995]). Further, in deciding such a motion, the facts alleged by the nonmovant andinferences that may be drawn therefrom must be accepted as true (see Doize v Holiday Inn Ronkonkoma, 6 AD3d 573, 574 [2004];Mosheyev v Pilevsky, 283 AD2d 469 [2001]).
Where a pet owner knows or should have known of his or her pet's vicious propensities, he or sheis strictly liable "for the harm the animal causes as a result of those propensities" (Collier v Zambito, 1 NY3d 444, 448[2004]; see Bernstein v Penny Whistle Toys,Inc., 10 NY3d 787 [2008]; Bard vJahnke, 6 NY3d 592 [2006]). In the absence of proof that the pet had bitten someone on aprior occasion, knowledge of vicious propensities may be raised "by evidence that it had been knownto growl, snap or bare its teeth" (Collier v Zambito, 1 NY3d at 447).
The defendant established, prima facie, his entitlement to judgment as a matter of law dismissing thecause of action sounding in strict liability with evidence that he neither knew nor should have known ofthe dog's vicious propensities (see Bard vJahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444, 446 [2004]; Galgano v Town of N. Hempstead, 41AD3d 536 [2007]; Blackstone v Hayward, 304 AD2d 941 [2003]). In opposition, theplaintiffs raised a question of fact as to whether the defendant should have known of his dog's viciouspropensities with evidence that upon each of Crysta's two arrivals at the defendant's home, the doggrowled, barked, snarled, and bared its teeth directly at her and her family, which exceeds normalcanine behavior of barking and growling (see Bard v Jahnke, 6 NY3d at 599; Collier vZambito, 1 NY3d at 447; Marek vBurmester, 37 AD3d 668, 669 [2007]). Unlike Brooks v Parshall (25 AD3d 853 [2006]), in which the dog neverdisplayed aggression toward the child it later bit, and the injured child's parents had allowed the child toplay with the dog, here, the dog allegedly twice bared its teeth directly at Crysta and her family, andCrysta's mother specifically warned Crysta not to go near the dog. Moreover, the conflicting depositiontestimony of Crysta's parents and the defendant as to whether the dog, among other things, bared itsteeth at Crysta and her family, presents a credibility issue for the jury (see Williams v Bonowicz,296 AD2d 401 [2002]). Accordingly, the Supreme Court properly denied that branch of thedefendant's motion which was for summary judgment dismissing the cause of action sounding in strictliability. Fisher, J.P., Ritter and McCarthy, JJ., concur.
Dillon, J. (dissenting and voting to reverse the order insofar as appealed from and grant that branchof the defendant's motion which was for summary judgment dismissing the cause of action sounding instrict liability, with the following memorandum): I respectfully dissent. The circumstances of this actionare indistinguishable from those in Brooks vParshall (25 AD3d 853 [2006]). In this action and in Brooks, a child was bitten by adog in the home of the dog's owners. In both cases, the dogs in question had exhibited no prior viciouspropensities, but had growled and bared teeth at guests at the home prior to the occurrence. The Courtheld in Brooks that the growling and baring of teeth, without more, was insufficient to qualify asnotice of vicious propensities (id. at 854). We should be controlled by that same result here.
Collier v Zambito (1 NY3d 444[2004]) does not call for a different result. The import of Collier, where prior viciouspropensities were found not to have existed, is that a conglomeration of factors must be considered,including prior incidents of biting or attacks, whether the dog had been kept as a family pet versus aguard dog, the manner in which the dog had been confined or restricted, and whether there had beenprior complaints to the owner (id. at 447). In cases where this Court has found the existence oftriable issues of fact concerning pet owners' knowledge of vicious propensities, evidence has beenrequired beyond mere growling, snarling, and the baring of teeth (see Miller v Isacoff, 39 AD3d 718 [2007] [the defendant acknowledgedthat his dog growled whenever the doorbell rang and that he posted warning signs on gates outside hishome, explaining that he did not want strangers walking on the property when the dog was alone in thebackyard]; see also Sherman v Torres,35 AD3d 436 [2006] [the defendant testified at deposition that the dog had previously"nicked" a neighbor's dog on the face, was usually chained outside, and after the incident, waseuthanized]; Francis v Curley Family Ltd.Partnership, 33 AD3d 852 [2006] [where the infant plaintiff was bitten by a dog at achild-care center where her mother worked, the mother of the infant plaintiff testified that she previouslyhad complained to the defendant owner that the dog jumped on the children, making themuncomfortable, and there was evidence that the defendant had locked up the dog on prior occasions tokeep it away from the children]; Parente vChavez, 17 AD3d 648 [2005] [the defendant admitted to the plaintiff after the incident thatthe dog was used as a guard dog to watch over certain equipment on the property, a pen had beenconstructed to keep the dog away from the mailman and others, and a "Beware of Dog" sign wasposted on the property]).
The majority, by holding, as it does now, that mere evidence of a dog's excited behavior consistingof momentary barking, growling, and baring of teeth when guests arrive is sufficient to defeat adefendant's prima facie showing of entitlement to judgment, deviates from clear and consistentprecedent requiring something more than evidence of temporary, excited behavior (see Collier vZambito, 1 NY3d at 447; Brooks v Parshall, 25 AD3d at 854; Miller v Isacoff,39 AD3d at 719). By concentrating solely on the plaintiffs' evidence of barking, snarling, andbaring of teeth when they arrived at the defendant's residence, the majority ignores the uncontrovertedevidence that the defendant's dog was kept unconfined in the home as a family pet, was regularly in thepresence of visitors to the home without incident, that the defendant had no knowledge of anyaggressive behavior by the dog, and had not received any complaints about the dog's behavior.Moreover, after the first visit, the plaintiffs did not complain or express any concern to the defendantabout the dog[*3]'s behavior. Also uncontroverted is the fact that whilethe dog exhibited excited behavior upon the plaintiffs' arrival at the defendant's home on bothoccasions, she immediately complied with the defendant's order to lie down. Indeed, it is undisputedduring the second visit, and prior to the occurrence, the plaintiffs and their other two family membersentered the defendant's home, the dog went off to lie down, and the visit proceeded uneventfully forapproximately 30 to 45 minutes before the infant plaintiff was bitten. There were no witnesses to theincident, and the record is devoid of any evidence that the behavior relied upon by the plaintiffs tocreate an issue of fact, i.e., barking, growling, and baring of teeth upon their arrival, in any way causedor contributed to the infant plaintiff's injury which was sustained long after the alleged behavior hadceased (see Seybolt v Wheeler, 42AD3d 643, 644 [2007]).
In my opinion, the plaintiffs failed to raise a triable issue of fact as their evidence demonstrated, atbest, excited, common, and temporary behavior of a dog upon hearing the arrival of guests. Suchbehavior, standing alone, does not demonstrate a propensity to commit an act that might harm othersand does not reflect a proclivity to act in a manner that puts others at risk (see Brooks v Parshall,25 AD3d at 854). Accordingly, I would reverse the order of the Supreme Court insofar asappealed from and grant that branch of the defendant's motion which was for summary judgmentdismissing the cause of action sounding in strict liability.