| Polman v Tersillo |
| 2009 NY Slip Op 06672 [65 AD3d 1207] |
| September 22, 2009 |
| Appellate Division, Second Department |
| Cristina Polman et al., Respondents, v Thomas Tersillo etal., Appellants. |
—[*1] DeProspo, Petrizzo & Longo, Goshen, N.Y. (Steven A. Kimmel of counsel), forplaintiffs-respondent and plaintiff/counterclaim defendant-respondent in the main action. Alan B. Brill, P.C., Suffern, N.Y. (Sheila A. Rosenrauch of counsel), forplaintiff/counterclaim defendant-respondent on the counterclaim.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Orange County (Owen, J.), datedOctober 16, 2008, as, upon renewal, in effect, vacated so much of its prior order dated May 22,2008, as granted that branch of their motion which was for summary judgment dismissing thecause of action alleging common-law negligence and as denied, as academic, the cross motion ofthe plaintiff counterclaim defendant Drew Polman for summary judgment dismissing thecounterclaim asserted against him, and thereupon denied that branch of their motion and grantedthe plaintiff counterclaim defendant's cross motion.
Ordered that the order is modified, on the law, by deleting the provision thereof, uponrenewal, denying that branch of the defendants' prior motion which was for summary judgmentdismissing the cause of action alleging common-law negligence asserted against them by theplaintiff Cristina Polman, and substituting therefor a provision, upon renewal, adhering to somuch of the order dated May 22, 2008, as granted that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, with costs to the defendants.
On the evening of August 12, 2006 the defendant Thomas Tersillo (hereinafter Thomas) wasattempting to attach his 10-year-old golden retriever to a dog run outside the defendants' home.Thomas lost his grip on the dog's collar and the dog ran off, ignoring Thomas's commands thathe return. After losing sight of the dog, Thomas put on his shoes to retrieve him, but before hecould begin his search for the dog, he heard a screech and then a dog's yelp from the front of thehouse. Thomas then went around to the front of the house to find that the dog had run into theroad and collided with a motorcycle owned and operated by the plaintiff counterclaim defendant[*2]Drew Polman (hereinafter Drew). The dog died as a result ofthe collision. Drew's wife, the plaintiff Cristina Polman (hereinafter Cristina), was seated behindDrew on the passenger seat of the motorcycle. Upon colliding with the dog, Cristina fell from themotorcycle, allegedly sustaining injuries.
Cristina, with Drew suing derivatively (hereinafter together the plaintiffs), thereaftercommenced this action against the dog's owners, Thomas and his wife, the defendant ElizabethTersillo (hereinafter together the defendants), asserting causes of action alleging common-lawnegligence and strict liability. The defendants answered and interposed a counterclaim againstDrew for contribution and/or indemnification, alleging that Drew's negligent operation of themotorcycle contributed in whole or in part to the accident.
After discovery, the defendants moved for summary judgment dismissing the complaint onthe grounds that a cause of action alleging common-law negligence does not lie against dogowners for injuries caused by their dog (see Bard v Jahnke, 6 NY3d 592 [2006]), and that they also couldnot be held liable under a theory of strict liability because there was no evidence of the dog'svicious propensities (see Collier vZambito, 1 NY3d 444 [2004]; Claps v Animal Haven, Inc., 34 AD3d 715, 716 [2006]). Theplaintiffs opposed the motion, and Drew cross-moved to dismiss the counterclaim assertedagainst him. In an order dated May 22, 2008, the Supreme Court granted the defendants' motionfor summary judgment dismissing the complaint and denied, as academic, Drew's cross motionfor summary judgment dismissing the counterclaim. The court found that a cause of actionalleging strict liability did not lie because the defendants' dog had "never previously exhibitedthe type of chasing behavior at issue in this case, nor any other vicious or dangerousproclivities." The court further found that pursuant to Bard v Jahnke (6 NY3d 592 [2006]), "the plaintiffs cannot recoverunder the theory of common-law negligence."
By notice of motion dated July 15, 2008, the plaintiffs moved for leave to renew theiropposition to that branch of the defendants' prior summary judgment motion which was todismiss so much of the complaint as alleged common-law negligence. The plaintiffs argued thatrenewal should be granted and that, upon renewal, the specified branch of the defendants'summary judgment motion should be denied in light of this Court's decision in Petrone v Fernandez (53 AD3d221 [2008]), dated July 8, 2008, which, they argued, "explicitly held that Bard didnot eliminate a common law negligence cause of action for personal injury caused by a domesticanimal." In light of Petrone, and upon reconsideration of their submissions, the plaintiffsargued that they raised a question of fact with respect to so much of the complaint as allegedcommon-law negligence.
Drew, in his capacity as the counterclaim defendant, opposed renewal, but argued that ifleave to renew were granted, he was entitled to reconsideration on the merits of his prior crossmotion for summary judgment dismissing the counterclaim asserted against him.
The defendants opposed renewal, arguing that Petrone was incorrectly decidedbecause it contradicted Bard and, in any event, under Petrone, in order for a dogowner to be held liable, there must be evidence of a violation of a leash law in addition toaggressive behavior by a dog, which was not present in this case.
The Supreme Court, inter alia, granted the plaintiffs' motion for leave to renew and, uponrenewal, denied that branch of the defendants' motion which was for summary judgmentdismissing so much of the complaint as alleged common-law negligence finding, pursuant toPetrone, that there was a triable issue of fact as to "whether defendants' dog exhibited'affirmative canine behavior' which, coupled with an alleged violation of the operative dogcontrol law, could give rise to a common-law negligence claim." The court also granted Drew'scross motion for summary judgment dismissing the counterclaim asserted against him. Thedefendants appeal. We modify.
Petrone was recently reversed by the Court of Appeals, which reaffirmed its priordetermination in Bard that "there is no such thing as negligence liability where harmdone by domestic animals is concerned" (Petrone, 12 NY3d 546, 550 [2009] [internalquotation marks omitted]).[*3]"In sum, when harm is caused by adomestic animal, its owner's liability is determined solely by application of the rulearticulated in Collier," i.e., strict liability (Bard, 6 NY3d at 599 [emphasisadded]). In light of the decision of the Court of Appeals in Petrone, reaffirmingBard, upon renewal, the original determination in the order dated May 22, 2008, grantingthat branch of the defendant's motion which was to dismiss the cause of action allegingcommon-law negligence, must be adhered to.
In light of our determination, the appellants' remaining contentions are academic. Santucci,J.P., Covello, Leventhal and Belen, JJ., concur.