| Smith v Reilly |
| 2011 NY Slip Op 03357 [83 AD3d 1492] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| John F. Smith et al., Respondents, v Marijane Reilly,Appellant. |
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Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.),entered July 6, 2010 in a personal injury action. The order denied the motion of defendant forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is affirmed with costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byJohn F. Smith (plaintiff) when a dog owned by defendant ran into the road and collided withplaintiff's bicycle, causing plaintiff to be propelled over the handlebars. Supreme Court properlydenied defendant's motion seeking summary judgment dismissing the complaint. "[T]he owner ofa domestic animal who either knows or should have known of that animal's vicious propensitieswill be held liable for the harm the animal causes as a result of those propensities" (Collier v Zambito, 1 NY3d 444,446 [2004]). In support of the motion, defendant submitted her own deposition testimony, inwhich she testified that the dog had a propensity to "bolt" from her residence and that she hadobserved the dog in and around the roadway on several occasions. Defendant's testimony"raise[s] an issue of fact whether defendant had actual or constructive notice that the dog waseither vicious or likely to interfere with traffic" (Sinon v Anastasi, 244 AD2d 973 [1997];cf. Roberts v Joller, 39 AD3d1224 [2007]).
Even assuming, arguendo, that defendant met her initial burden on the motion, we concludethat plaintiffs raised a triable issue of fact sufficient to defeat the motion (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition to the motion,plaintiffs submitted the affidavit of a witness who had observed the dog loose on a few occasionsand averred that the dog "barks and runs for the roadway." "[A]n animal that behaves in a mannerthat would not necessarily be considered dangerous or ferocious, but nevertheless reflects aproclivity to act in a way that puts others at risk of harm, can be found to have viciouspropensities—albeit only when such proclivity results in the injury giving rise to thelawsuit" (Collier, 1 NY3d at 447). Thus, the evidence submitted by plaintiffs also raises atriable issue of fact whether defendant had notice of the dog's proclivity to act in a way thatcreated the risk of [*2]harm to plaintiff that resulted in theaccident.
All concur except Scudder, P.J., and Smith, J., who dissent and vote to reverse in accordancewith the following memorandum.
Scudder, P.J., and Smith, J. (dissenting). We respectfully dissent inasmuch as we concludethat Supreme Court erred in denying defendant's motion seeking summary judgment dismissingthe complaint. It is well settled that the sole viable claim against the owner of a domestic animalthat causes injury is for strict liability and, to establish such liability, there must be evidence thatthe animal's owner had notice of its vicious propensities. The Court of Appeals has often"restated [its] long-standing rule 'that the owner of a domestic animal who either knows or shouldhave known of that animal's vicious propensities will be held liable for the harm the animalcauses as a result of those propensities. Vicious propensities include the propensity to do any actthat might endanger the safety of the persons and property of others in a given situation' " (Bard v Jahnke, 6 NY3d 592,596-597 [2006], quoting Collier vZambito, 1 NY3d 444, 446 [2004] [internal quotation marks and citations omitted]; see Petrone v Fernandez, 12 NY3d546, 550 [2009]). Consequently, "a plaintiff cannot recover for injuries resulting from thepresence of a dog in the highway absent evidence that the defendant was aware of the animal'svicious propensities or of its habit of interfering with traffic" (Staller v Westfall, 225AD2d 885 [1996]; see Sinon v Anastasi, 244 AD2d 973 [1997]).
Here, contrary to the majority's conclusion, defendant established in support of the motionthat she had no knowledge of any vicious propensities of the dog or its tendency to interfere withtraffic. We have frequently stated that defendants in this type of case will meet "their initialburden by submitting evidence establishing that they lacked actual or constructive knowledgethat . . . the . . . dog[ ] had a propensity to interfere with traffic on theroad" (Myers v MacCrea, 61 AD3d1385, 1386 [2009]). "Here, defendant[ ] established that, although [her] dog hadoccasionally run into the road . . . , [she] knew of no incidents when it had evercharged or chased vehicles or impeded the flow of traffic. Nor had [she] received any complaintsthat the dog had ever interfered with traffic on the road in any way. [That] evidence wassufficient to shift to plaintiff the burden of raising a question of fact [with respect] todefendant['s] knowledge that the dog had previously interfered with traffic. However, plaintiff'sevidence that the dog was occasionally allowed to run loose and would then sometimes go intothe road is insufficient to raise a question of fact on [that] issue" (Alia v Fiorina, 39 AD3d 1068,1069 [2007]).
Contrary to the contention of plaintiffs and the majority's conclusion, "[p]laintiffs failed toraise an issue of fact whether defendant[ ] had actual or constructive notice of the dog'spropensity to interfere with vehicular traffic" (Roberts v Joller, 39 AD3d 1224, 1225 [2007] [internal quotationmarks omitted]). "Proof that a dog roamed the neighborhood or occasionally ran into the road isinsufficient [to raise a triable issue of fact], although proof that the dog had a habit of chasingvehicles or otherwise interfering with traffic could constitute a vicious propensity" (Rigley v Utter, 53 AD3d 755, 756[2008]). "At most, the evidence established that defendant[was] aware that the dog would run[to] the road from time to time. We conclude that, in the absence of evidence that defendant[ ]knew or should have known that [her] dog was vicious or had a propensity to interfere withvehicular traffic, there is no factual basis for a finding of negligence" (Nilsen v Johnson,191 AD2d 930, 931 [1993]). We therefore would reverse the order, grant the motion and dismissthe complaint. Present—Scudder, P.J., Smith, Peradotto, Lindley and Green, JJ.