| Barone v Phillips |
| 2011 NY Slip Op 03395 [83 AD3d 1523] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| Robert J. Barone et al., Respondents, v Susan RaynorPhillips, Also Known as Susan Raynor, et al., Appellants. |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.),entered October 8, 2010 in a personal injury action. The order denied the motion of defendantsfor summary judgment.
It is hereby ordered that the order so appealed from is reversed on the law without costs, themotion is granted and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byRobert J. Barone (plaintiff) while attempting to run away from a dog allegedly owned and/orharbored by defendants, who were plaintiffs' neighbors. According to plaintiffs, the dog wasbarking and ran directly from defendants' property toward plaintiff on his property. Plaintiffbelieved that the dog would bite him and therefore ran to his house, but in doing so he trippedover the threshold of his front door and injured his knee. We agree with defendants that SupremeCourt erred in denying their motion for summary judgment dismissing the complaint. It is wellsettled that "the owner of a domestic animal who either knows or should have known of thatanimal's vicious propensities will be held liable for the harm the animal causes as a result ofthose propensities" (Collier vZambito, 1 NY3d 444, 446 [2004]; see Petrone v Fernandez, 12 NY3d 546, 550 [2009]). "[A]n animalthat behaves in a manner that would not necessarily be considered dangerous or ferocious, butnevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found tohave vicious propensities—albeit only when such proclivity results in the injury givingrise to the lawsuit" (Collier, 1 NY3d at 447 [emphasis added]).
Here, defendants met their initial burden by establishing that they had no knowledge of anyvicious propensity on the part of their dog, i.e., they had not seen their dog chasing any person onany [*2]occasion, nor had they heard of any such event (see Rose v Heaton, 39 AD3d 937,938 [2007]). In response, plaintiffs presented no evidence suggesting that the dog had apropensity to run at people and thus failed to raise a triable issue of fact to defeat the motion(see Pollard v United Parcel Serv., 302 AD2d 884, 884 [2003]; cf. Lewis v Lustan, 72 AD3d1486, 1487 [2010]). To the extent that plaintiffs presented evidence that the dog hadpropensities to engage in other behavior that might endanger people, we conclude that suchevidence was insufficient to raise an issue of fact to defeat the motion because those propensitiesdid not "result[ ] in the injury giving rise to the lawsuit" (Collier, 1 NY3d at 447; see Farnham v Meder, 72 AD3d1574, 1576 [2010]).
All concur except Gorski, J., who dissents and votes to affirm in the following memorandum.
Gorski, J. (dissenting). I respectfully dissent because, in my view, Supreme Court properlydenied defendants' motion for summary judgment dismissing the complaint. As noted by themajority, plaintiffs commenced this action seeking damages for injuries sustained by Robert J.Barone (plaintiff) when he fell while being chased by a barking dog allegedly under the controlof defendants. As the majority correctly states, defendants may be held liable for the harm causedby the dog if they knew or should have known of the dog's vicious propensities, and thosepropensities resulted in the injury giving rise to this action (see Collier v Zambito, 1 NY3d 444, 446-447 [2004]). Evidence ofa vicious propensity, however, is not limited to dangerous or ferocious behavior, but suchevidence also includes "a proclivity to act in a way that puts others at risk of harm" (id. at447), including a known tendency to attack or to jump up on others, even in playfulness (seePollard v United Parcel Serv., 302 AD2d 884 [2003]). In opposition to defendants' motion,plaintiffs submitted evidence that the dog previously had knocked down a small child in thepresence of defendant Patrick Phillips, and had a history of being "wild" and running ontoplaintiffs' property, resulting in multiple complaints from plaintiff to city officials. Thus, contraryto the conclusion of the majority, plaintiff presented evidence sufficient to raise a triable issue offact whether defendants had knowledge that the dog had a propensity to act in a manner that gaverise to plaintiff's injuries. Present—Smith, J.P., Centra, Peradotto, Gorski and Martoche,JJ.