| Vichot v Day |
| 2011 NY Slip Op 00077 [80 AD3d 851] |
| January 6, 2011 |
| Appellate Division, Third Department |
| Carmen Vichot, Respondent, v John F. Day,Appellant. |
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Rose, J. Appeal from an order of the Supreme Court (Muller, J.), entered November 23, 2009in Clinton County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff was driving on a public highway when her vehicle collided with a horse owned bydefendant. Seeking to recover damages for the injuries she sustained, plaintiff commenced thisnegligence action. After joinder of issue and discovery, defendant moved for summary judgmenton the ground that he could not be held liable for ordinary negligence and he had no notice of thehorse's propensity to escape from its stall and roam free. Supreme Court denied the motion anddefendant appeals.
We reverse. "[A] cause of action for ordinary negligence does not lie against the owner of adomestic animal which causes injury" (Alia v Fiorina, 39 AD3d 1068, 1069 [2007]). Plaintiff's ability torecover is now limited to strict liability, which requires evidence that the owner knew or shouldhave known of the animal's vicious propensities (see Petrone v Fernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 601[2006]). As plaintiff's complaint sounds only in ordinary negligence, and there is no evidence inthe record that the horse in question had a propensity to escape the confines of defendant's barnor pasture and roam free, the motion for summary judgment should have been granted (see Collier v Zambito, 1 NY3d444, 446 [2004]; Rose vHeaton, 39 AD3d 937, 938 [2007]; Alia v Fiorina, 39 AD3d at 1069).
Mercure, J.P., Peters, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed,on the law, without costs, motion granted, summary judgment awarded to defendant andcomplaint dismissed.