| Varvaro v Belcher |
| 2009 NY Slip Op 06682 [65 AD3d 1225] |
| September 22, 2009 |
| Appellate Division, Second Department |
| Ricky Varvaro et al., Appellants, v Anita Belcher,Respondent. |
—[*1] Murphy & Lambiase, Goshen, N.Y. (George A. Smith and Laura Freeman of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Dutchess County (Pagones, J.), dated July 2, 2008, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendant's motion which were for summary judgment dismissing thesecond, third, and fourth causes of action of the amended complaint, and substituting thereforprovisions denying those branches of the motion; as so modified, the order is affirmed, withcosts to the plaintiffs.
According to the plaintiffs, on February 19, 2006 their dog, a chihuahua, was attacked by thedefendant's dog, an akita. The plaintiff Ricky Varvaro (hereinafter Varvaro) stated in hisdeposition that when he arrived at the scene of this altercation, his chihuahua was bleeding andthe dog's side had been "ripped open," the defendant's akita was hovering over the chihuahua,and Varvaro's wife, the plaintiff Marion Varvaro, was unsuccessfully trying to get the akita awayfrom the chihuahua. Varvaro "tackled" the defendant's dog so that his wife could retrieve theinjured chihuahua, which ultimately died as a result of the injuries inflicted by the akita. Varvarorestrained the akita in a "headlock" and struggled with the dog, "hitting him against [a] tree."Varvaro allegedly sustained injuries as a result of his struggle with the akita.
"To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that'the dog had vicious propensities and that the owner of the dog, or person in control of thepremises where the dog was, knew or should have known of such propensities' " (Christian v Petco Animal Supplies Stores,Inc., 54 AD3d 707, 707-708 [2008], quoting Claps v Animal Haven, Inc., 34 AD3d 715, 716 [2006]; see Bernstein v Penny Whistle Toys,Inc., 10 NY3d 787, 788 [2008]). Here, the defendant failed to submit evidencesufficient to establish, prima facie, that her dog did not have vicious propensities and that she didnot know or have reason to know of such propensities. Accordingly, the Supreme Court shouldhave denied those branches of the defendant's motion which were for summary judgmentdismissing the second, [*2]third, and fourth causes of action ofthe amended complaint.
However, the Supreme Court properly granted that branch of the defendant's motion whichwas for summary judgment dismissing the first cause of action alleging common-law negligence,as the plaintiffs cannot recover on such a cause of action (see Petrone v Fernandez, 12 NY3d 546 [2009]; see also Bard v Jahnke, 6 NY3d592 [2006]; Ortiz v Contreras,53 AD3d 603, 604 [2008]). Spolzino, J.P., Miller, Angiolillo and Dickerson, JJ., concur.