| Thurber v Apmann |
| 2012 NY Slip Op 00453 [91 AD3d 1257] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| V. Ramona Thurber, Appellant, v Elizabeth Apmann,Respondent. |
—[*1] Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Robert D. Cook of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Work, J.), entered September 29,2010 in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
In August 2007, plaintiff and defendant, an off-duty canine handler for the State Police, werewalking their respective dogs at a public venue in the City of Kingston, Ulster County, when oneof defendant's two dogs—a retired member of the K9 unit—attacked plaintiff's dog.Plaintiff thereafter commenced this action seeking to recover damages she allegedly sustained asa result of the attack. Upon defendant's motion for summary judgment, Supreme Court dismissedthe complaint, finding that defendant satisfied her initial burden of demonstrating that she hadneither actual or constructive notice that her dogs had vicious propensities, and plaintiff failed toraise an issue of fact. Plaintiff appeals.
An " 'owner of a domestic animal who either knows or should have known of that animal'svicious propensities will be held [strictly] liable for the harm the animal causes as a result ofthose propensities' " (Bard v Jahnke,6 NY3d 592, 596 [2006], quoting Collier v Zambito, 1 NY3d 444, 446 [2004]; accord Gannon v Conti, 86 AD3d704, 705 [2011]). Here, as the proponent of summary judgment, defendant bore the initialburden of establishing that, prior to the instant incident, she did not know or have reason to knowthat her dogs possessed any vicious or dangerous propensities (see Gannon v Conti, 86AD3d at 705; Rose v Heaton, 39 [*2]AD3d 937, 938[2007]). Defendant satisfied that burden by submitting evidence that she received each of herdogs through the State Police K9 training program when the dogs were less than one year old andthat they had lived only with her since she received them. The dogs also accompanied her towork, although the one that allegedly bit plaintiff and her dog was retired approximately six yearsago. Defendant testified that, as specialized explosives detection dogs, the dogs were trained toact passively, rather than aggressively, and were socialized so that they could work in heavilypopulated areas and still maintain their focus on locating explosives. While they did also receive"handler protection" training, which defendant described as training to teach the dogs to react toan aggressive attack on her while she was on duty, a situation had never arisen in which thattraining was utilized, nor had the dogs participated in the apprehension of any suspects.According to defendant, until the instant incident, the dogs had never bit, barked at, or otherwisedisplayed aggression toward another person or animal. This evidence was sufficient to establishthat defendant had no actual or constructive notice of the dogs' alleged vicious propensities.
In opposition, plaintiff averred that evidence of the severity of the attack, together with thedogs' breed, formal police training and use as guard dogs, should have put defendant on notice ofthe dogs' vicious propensities. However, there is no support in the record for a finding thatdefendant kept the dogs as guard dogs, and we are not convinced that the formal training that thedogs received as members of the State Police K9 unit equates with the dogs being kept as guarddogs. Nor do we find that the formal police training of the dogs constitutes either evidence ofviciousness or provided defendant with notice of such (but cf. Gannon v Conti, 86 AD3dat 705-706). Moreover, not only is evidence of a dog's breed insufficient to demonstrate that anissue of fact exists, "where, as here, there is no other evidence even suggesting that defendantknew or should have known of [the dogs'] allegedly vicious propensities, consideration of thedog[s'] breed is irrelevant" (Malpezzi vRyan, 28 AD3d 1036, 1038 [2006]; see Roupp v Conrad, 287 AD2d 937, 938[2001]). Finally, even viewing the evidence in the light most favorable to plaintiff, thecircumstances of the attack here do not raise an issue of fact as to the dogs' vicious propensities(see Malpezzi v Ryan, 28 AD3d at 1037-1038; Loper v Dennie, 24 AD3d 1131, 1133 [2005]). Inasmuch asplaintiff did not demonstrate that an issue of material fact existed, Supreme Court properlygranted defendant's motion for summary judgment dismissing the complaint.
Spain, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.