| Lewis v Lustan |
| 2010 NY Slip Op 03531 [72 AD3d 1486] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Joan M. Lewis, Appellant, v Frank Lustan et al.,Respondents. |
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Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), enteredDecember 10, 2008 in a personal injury action. The order granted defendants' motion forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is reversed on the law without costs, themotion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries that shesustained while walking her dog by defendants' residence. Defendants' unleashed dog emergedfrom behind a car, barking. The dog ran toward plaintiff, startling her, whereupon she lost herbalance and fell. We agree with plaintiff that Supreme Court erred in granting defendants' motionfor summary judgment dismissing the complaint. Defendants' own submissions in support of themotion raise a triable issue of fact whether defendants' dog had vicious propensities and, if so,whether defendants knew or should have known of those propensities (see generally Collier v Zambito, 1NY3d 444, 446 [2004]). "[A]n animal that behaves in a manner that would not necessarilybe considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way thatputs others at risk of harm, can be found to have vicious propensities—albeit only whensuch proclivity results in the injury giving rise to the lawsuit" (id. at 447). "A knowntendency to attack others, even in playfulness, as in the case of the overly friendly large dog witha propensity for enthusiastic jumping up on visitors, will be enough to make the defendant[s]liable for damages resulting from such an act" (Anderson v Carduner, 279 AD2d 369,369-370 [2001] [internal quotation marks omitted]; see Pollard v United Parcel Serv.,302 AD2d 884 [2003]). Here, we conclude that the deposition testimony of defendants that theirbarking dog rushed toward cars and people on numerous occasions prior to the incident withplaintiff raises a triable issue of fact to defeat the motion (see Pollard, 302 AD2d at884-885).
All concur except Smith, J.P., and Pine, J., who dissent and vote to affirm in the followingmemorandum.
Smith, J.P., and Pine, J. (dissenting). We respectfully dissent and would affirm the ordergranting defendants' motion for summary judgment dismissing the complaint. In our view, thereis no [*2]basis for imposing liability upon defendants under thecircumstances of this case. The majority correctly sets forth the well-settled principle that "ananimal that behaves in a manner that would not necessarily be considered dangerous orferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm,can be found to have vicious propensities—albeit only when such proclivity results in theinjury giving rise to the lawsuit" (Collier v Zambito, 1 NY3d 444, 447 [2004]; see Bard v Jahnke, 6 NY3d 592,597 [2006]). "[W]hen harm is caused by a domestic animal, its owner's liability is determinedsolely by application of the rule articulated in Collier" (Petrone v Fernandez, 12 NY3d546, 550 [2009]). That rule does not apply to the facts of this case, however, because thedog in question did not "reflect[ ] a proclivity to act in a way that puts others at risk of harm"(Collier, 1 NY3d at 447).
The record establishes that plaintiff was walking her dog on a sidewalk at the end ofdefendants' driveway in the dark and that she fell to the ground after she was startled bydefendants' dog. The dog came from behind defendants' vehicle in defendants' driveway andbarked at plaintiff, but it did not in any manner come into contact with plaintiff. It is undisputedthat, although the dog had previously run and barked in defendants' front yard, it had never "'been known to growl, snap or bare its teeth[ ]' " at anyone (Bard v Jahnke, 6 NY3d 592, 597 [2006]), nor is there evidencethat the dog had bitten, jumped on, or come into contact with others on prior occasions. Weagree with defendants that the dog's tendency to run and bark is merely common canine behaviorthat does not endanger anyone. Defendants therefore met their burden of establishing theirentitlement to judgment as a matter of law under Collier, and plaintiff failed to raise atriable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Present—Smith, J.P., Peradotto, Carni, Pine and Gorski, JJ.