| Gannon v Conti |
| 2011 NY Slip Op 05849 [86 AD3d 704] |
| July 7, 2011 |
| Appellate Division, Third Department |
| Cora-Ann Gannon, an Infant, by Her Father and Guardian, HerbertGannon, Jr., et al., Appellants, v Joseph Conti et al.,Respondents. |
—[*1] Law Offices of Theresa Puleo, Albany (Ingrid A. Effman of counsel), forrespondents.
Spain, J. Appeal from an order of the Supreme Court (Cahill, J.), entered August 19, 2010 inUlster County, which granted defendants' motion for summary judgment dismissing thecomplaint.
In October 2008, a dog owned by defendants allegedly left their yard in the Town ofMarlborough, Ulster County by passing through an underground "invisible" electrical fencesystem, and bit plaintiff Cora-Ann Gannon (hereinafter the child), who was sitting on her bike onthe adjacent property. Plaintiffs thereafter commenced this action, seeking damages for thechild's injury based upon common-law negligence and strict liability. After issue was joined,defendants moved for summary judgment dismissing the complaint, asserting that they had noprior knowledge of their dog's alleged vicious propensities, and Supreme Court granted themotion. Plaintiffs appeal.
It is well settled " 'that the owner of a domestic animal who either knows or should haveknown of that animal's vicious propensities will be held [strictly] liable for the harm the animalcauses as a result of those propensities' " (Bard v Jahnke, 6 NY3d 592, 596 [2006], quoting Collier v Zambito, 1 NY3d 444,446 [2004]; see Rose v Heaton, 39AD3d 937, 939 [2007]). To be entitled to summary judgment, an animal-owner defendantbears an initial burden to [*2]demonstrate that, prior to theincident giving rise to the lawsuit, he or she was without knowledge that the animal possessedany vicious or dangerous propensities (see Miletich v Kopp, 70 AD3d 1095, 1095 [2010]; Illian v Butler, 66 AD3d 1312,1313 [2009]). "Even in the absence of a prior bite, a triable issue of fact regarding knowledge ofvicious propensities may be raised by other evidence of the dog's aggressive behaviors" (Morse v Colombo, 8 AD3d 808,809 [2004] [citations omitted]).
Here, defendants' own depositions, submitted in support of their motion for summaryjudgment, raise an issue of fact as to their notice of their dog's allegedly dangerous propensities,precluding summary judgment. Defendants admitted that, on numerous occasions prior to thechild's injury, defendant Joseph Conti would put a protective "bite sleeve" on hisarm—obtained through his employment as a police officer and regularly used in the formaltraining of K-9 dogs to teach the animals to bite and hold a perpetrator's arm—andencourage his dog to leap up, bite the sleeve and hold on until commanded to release. We findthis evidence of encouraging the dog to jump up and bite the sleeved arm of a human beingsufficient to create an issue of the fact for the jury as to whether defendants had notice of thedog's alleged propensity to bite (see Morse v Colombo, 8 AD3d at 809; Calabro vBennett, 291 AD2d 616, 616 [2002]; cf. Illian v Butler, 66 AD3d at 1313;Velazquez v Carns, 244 AD2d 620, 620-621 [1997]).
Defendants assert that their dog was not trained to attack and that the use of the bite sleevewas mere "play" in the form of "tug-o-war." However, even if the activity is interpreted as purelyplayful from the dog's perspective, " 'an animal that behaves in a manner that would notnecessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in away that puts others at risk of harm, can be found to have vicious propensities—albeit onlywhen such proclivity results in the injury giving rise to the lawsuit' " (Bard v Jahnke, 6NY3d at 597, quoting Collier v Zambito, 1 NY3d at 447; Earl v Piowaty, 42 AD3d 865, 866[2007]; Marquardt v Milewski, 288 AD2d 928 [2001]). We hold, on the evidence as itexists at this early stage of the action, that a jury could reasonably conclude that the dog'sbehavior with regard to the bite sleeve was sufficient to put defendants on notice that he mightbite someone, as it is alleged he did to the child. Accordingly, summary judgment on the issue ofstrict liability was unwarranted.
However, because a plaintiff in a case arising out of an attack by a domestic animal may onlyrecover under a theory of strict liability (see Petrone v Fernandez, 12 NY3d 546, 550 [2009]; Bernstein v Penny Whistle Toys, Inc.,10 NY3d 787, 788 [2008]; Collier v Zambito, 1 NY3d at 446), plaintiffs' claimssounding in common-law negligence were properly dismissed.
Mercure, J.P., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted defendants' motion forsummary judgment dismissing the strict liability causes of action; motion denied to said extent;and, as so modified, affirmed.