| Rockwood v LaBate |
| 2011 NY Slip Op 03406 [83 AD3d 1530] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| Russell J. Rockwood, Respondent, v James LaBate et al.,Appellants. |
—[*1] Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.),entered May 20, 2010 in a personal injury action. The order denied defendants' motion forsummary judgment.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained ina motorcycle accident when he attempted to avoid hitting defendants' dog, which had entered theroad. Supreme Court denied defendants' motion seeking summary judgment dismissing thecomplaint. That was error. It is well established that the negligence of the owners of a domesticanimal is not a basis for liability for injuries caused by the animal (see Petrone v Fernandez, 12 NY3d546, 550 [2009]). Liability may be established only if the owners knew or should haveknown that the animal had a vicious propensity (see Collier v Zambito, 1 NY3d 444, 446 [2004]), which includes apropensity to interfere with traffic (seeMyers v MacCrea, 61 AD3d 1385 [2009]).
It is undisputed that, on the date of the accident, defendant Lois LaBate closed the gate on thesix-foot chain link fence surrounding defendants' yard but failed to secure it and that the dogpushed open the gate and ran down the 100-foot driveway and into the road. In support of theirmotion, however, defendants established that the dog had never been unrestrained outside of theconfines of their yard prior to that date. Further, defendants submitted plaintiff's depositiontestimony that he lived one-quarter mile from defendants' house and that he passed defendants'house at least twice per day and had never seen the dog prior to the date of the accident. Wetherefore conclude that defendants established their entitlement to judgment as a matter of law(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We furtherconclude that plaintiff failed to raise a triable issue of fact whether the dog had a propensity tointerfere with traffic based upon defendant's testimony that the dog ran inside the confines of theyard and went to the fence to "follow noise." "In view . . . of the absence of anyevidence that the dog . . . exhibited a . . . propensity [to interfere withtraffic] prior to the incident [*2]involving the . . .plaintiff, no triable issue was raised" (Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224, 224 [2007],affd 10 NY3d 787 [2008]; see Myers, 61 AD3d 1385; see generallyPetrone, 12 NY3d at 550). We therefore reverse the order, grant the motion and dismiss thecomplaint. Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche, JJ.