| Hamlin v Sullivan |
| 2012 NY Slip Op 01854 [93 AD3d 1013] |
| March 15, 2012 |
| Appellate Division, Third Department |
| Susan M. Hamlin, Respondent, v Julie Fink Sullivan et al.,Appellants. |
—[*1] LaFave, Wein & Frament, P.L.L.C., Guilderland (Paul Wein of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered January 24,2011 in Saratoga County, which denied defendants' motion for summary judgment dismissing thecomplaint.
In July 2005, plaintiff was walking her dog in an area of a state park where dog ownersregularly allow their dogs to be off-leash. On her way back to the parking lot, plaintiff stopped tochat with two "regulars" of the dog park—Michael Zimmerman and Jon Galt—whointroduced her to defendant Julie Fink Sullivan (hereinafter defendant). Defendant was at thepark with her five-year-old daughter and their dog Quinn, a golden retriever/poodle mix. Plaintiffwas standing in the vicinity of defendant, Zimmerman and Galt when Quinn—who wasrunning freely around the park—ran into her, causing her to fall and suffer various injuries.Plaintiff subsequently commenced this action seeking damages for those injuries. Afterdiscovery, defendants moved for summary judgment dismissing the complaint. Supreme Courtdenied defendants' motion and this appeal ensued.
We reverse. " '[T]he owner of a domestic animal who either knows or should have known ofthat animal's vicious propensities will be held [strictly] liable for the harm the animal causes as aresult of those propensities' " (Bard vJahnke, 6 NY3d 592, 596 [2006], quoting [*2]Collier v Zambito, 1 NY3d 444,446 [2004]; see Gannon v Conti, 86AD3d 704, 705 [2011]). Thus, on their motion for summary judgment, defendants bore the"initial burden to demonstrate that, prior to the incident giving rise to the lawsuit, [they were]without knowledge that the animal possessed any vicious or dangerous propensities" (Gannonv Conti, 86 AD3d at 705; seeMiletich v Kopp, 70 AD3d 1095, 1095-1096 [2010]). Vicious propensities have beendefined to include "the propensity to do any act that might endanger the safety of the persons andproperty of others in a given situation" (Collier v Zambito, 1 NY3d at 446 [internalquotation marks and citation omitted]). Accordingly, "an animal that behaves in a manner thatwould not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivityto 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" (id. at 447). Nonetheless, "[e]vidence of normal canine behavior is insufficient[to establish a vicious propensity]" (Earlv Piowaty, 42 AD3d 865, 866 [2007] [internal quotation marks and citation omitted]; see Illian v Butler, 66 AD3d 1312,1314 [2009]).
Here, defendants offered transcripts of extensive testimony about Quinn's behavioral history,as well as the incident itself, taken at a hearing in Saratoga City Court in a proceeding pursuant toAgriculture and Markets Law § 121 and at subsequent depositions taken in the instantaction. Through such testimony, they established that, on the day in question, defendant broughtQuinn to the dog park for exercise. Defendant was speaking with Galt and Zimmerman, andplaintiff was standing approximately 15 to 20 feet away. A group of dogs, including Quinn, wererunning in a large circular loop around two adjoining fields, chasing one another. Quinn ran pastdefendant and, within seconds, ran into plaintiff, hitting her in the area of her knees and lowerlegs, knocking her legs out from under her and causing her to fall. Galt and Zimmerman testifiedthat it appeared that Quinn was trying to stop when he hit plaintiff because he had turned hisbody to the side just before impact. Defendant testified that Quinn had never previously growledat, bitten, attacked or knocked over another person and had never bitten another dog.Zimmerman, who had been going to the dog park twice a day for the past four years and hadknown Quinn and defendants for three years, testified that Quinn is a powerful, sweet, excitable,energetic but obedient dog who is "always within [defendant's] control." This evidence wassufficient to shift to plaintiff the burden of raising a question of fact as to defendants' knowledgethat Quinn had a proclivity to run into people and knock them over (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Gannon v Conti, 86 AD3d at 705; Scheidt v Oberg, 65 AD3d 740,741 [2009]; Brooks v Parshall, 25AD3d 853, 854 [2006]).
Plaintiff's evidence was insufficient to meet that burden. Plaintiff proffered the testimony andaffidavit of her former neighbor, Dell Marie Banach, who was familiar with Quinn from the dogpark. Banach stated that Quinn was "hyper, friendly, overly-friendly" and would frequently"jump" on people, including her. This was consistent with the testimony of defendant, as well asGalt and Zimmerman, that Quinn would run up to people at the dog park and "greet" them byraising himself up on his hind legs and attempting to place his front paws on their arms or chest.Banach further stated that, despite complaints from other people at the dog park, defendant didnot adequately control Quinn. However, Banach never saw Quinn knock a person down.
Banach's testimony was insufficient to raise a triable issue of fact regarding the dog's viciouspropensities and defendant's notice of those propensities. Inasmuch as the behavior of whichdefendant admittedly had notice—jumping on people—was not the behavior thatresulted in plaintiff's injury, and plaintiff failed to produce any evidence that defendant hadnotice of a [*3]proclivity by Quinn to run into people and knockthem over, plaintiff failed to raise a question of fact to preclude summary judgment (see Smith v Reilly, 17 NY3d 895,896 [2011]; Collier v Zambito, 1 NY3d at 446-447; Alia v Fiorina, 39 AD3d 1068, 1069 [2007]; Campo v Holland, 32 AD3d 630,631 [2006]). Further, the testimony regarding Quinn's arguably rambunctious behavior, ingeneral—particularly since it occurred at a dog park where dogs are expected to runaround—merely reveals typical canine behavior, which is insufficient to establish viciouspropensities (see Illian v Butler 66 AD3d at 1314; compare Collier v Zambito, 1NY3d at 447-448).
In light of the foregoing, we are satisfied that defendants demonstrated their entitlement tosummary judgment dismissing the complaint.
Mercure, A.P.J., Spain, Kavanagh and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, with costs, motion granted, summary judgment awarded to defendants andcomplaint dismissed.