| Egan v Hom |
| 2010 NY Slip Op 05507 [74 AD3d 1133] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Janis Egan et al., Respondents, v Donna Hom et al.,Appellants. |
—[*1] Duffy & Duffy, Uniondale, N.Y. (Michael A. Santo of counsel), for respondents.
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, Suffolk County (Cohen, J.), datedJuly 1, 2009, as denied those branches of their motion which were for summary judgmentdismissing the first, second, and fourth causes of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendants' motion which were for summary judgment dismissing the first,second, and fourth causes of action are granted.
The injured plaintiff and her husband, suing derivatively, commenced this action against thedefendants, who are their relatives, contending that the defendants' dog caused the injuredplaintiff to sustain personal injuries when she allegedly became entangled in the dog's chain,which was attached to a dog "runner," while the dog was "running around" the defendants' yard.The plaintiffs alleged four causes of action in their complaint: common-law negligence; strictliability based on the dog's known vicious propensities; nuisance due to the defendants' failure tocontrol their dog; and the husband's derivative claim resulting from the injuries sustained by hiswife, the injured plaintiff.
Following the completion of discovery and the filing of the note of issue, the defendantsmoved for summary judgment dismissing the complaint on the grounds, inter alia, that a cause ofaction alleging common-law negligence does not lie against dog owners for injuries caused bytheir dog, and that they also could not be held liable under a theory of strict liability becausethere was no evidence of vicious propensities. The plaintiffs opposed the motion. The SupremeCourt denied the defendants' motion for summary judgment dismissing the complaint, except asto the third cause of action alleging nuisance. The defendants appeal, and we reverse insofar asappealed from.
" '[W]hen harm is caused by a domestic animal, its owner's liability is determinedsolely by application of the rule articulated in Collier [v Zambito, 1NY3d 444 (2004)]' " (Petrone vFernandez, 12 NY3d 546, 550 [2009], quoting Bard v Jahnke, 6 NY3d 592, 599 [2006]), that is, the rule of strictliability for harm caused by a domestic animal whose owner knows or should have known of the[*2]animal's vicious propensities (see Collier v Zambito,1 NY3d at 446-447; Polman vTersillo, 65 AD3d 1207, 1209 [2009]; Christian v Petco Animal Supplies Stores, Inc., 54 AD3d 707, 708[2008]; Claps v Animal Haven,Inc., 34 AD3d 715, 716 [2006]).
Applying these principles to the matter at bar, the Supreme Court should have granted thatbranch of the defendants' motion which was for summary judgment dismissing the first cause ofaction alleging common-law negligence, since New York does not recognize a common-lawnegligence cause of action to recover damages for injuries caused by a domestic animal (seePetrone v Fernandez, 12 NY3d at 550; Bard v Jahnke, 6 NY3d at 599; Collier vZambito, 1 NY3d at 446-447; Varvaro v Belcher, 65 AD3d 1225, 1226 [2009]).
The Supreme Court also should have granted that branch of the defendants' motion whichwas for summary judgment dismissing the second cause of action sounding in strict liability. Thedefendants met their initial burden of demonstrating that there was no evidence that the dog,albeit excitable, overly friendly, and frisky, had aggressive or vicious propensities (seePetrone v Fernandez, 12 NY3d at 550; Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787, 788 [2008];Bard v Jahnke, 6 NY3d at 597). In opposition, the plaintiffs, who were frequent visitorsof the defendants' residence, failed to submit evidence sufficient to raise a triable issue of fact(see Collier v Zambito, 1 NY3d at 447; Palumbo v Nikirk, 59 AD3d 691, 691 [2009]; Christian v PetcoAnimal Supplies Stores, Inc., 54 AD3d at 708).
In light of this determination, that branch of the defendants' motion which was for summaryjudgment dismissing the fourth cause of action based on the husband's derivative claim alsoshould have been granted. Dillon, J.P., Balkin, Eng and Chambers, JJ., concur. [Prior CaseHistory: 2009 NY Slip Op 31537(U).]