| Reil v Chittenden |
| 2012 NY Slip Op 05058 [96 AD3d 1273] |
| June 21, 2012 |
| Appellate Division, Third Department |
| Arne Reil, Respondent, v Kathy Chittenden et al.,Individually and Doing Business as Sugar Bush Farm, Appellants. |
—[*1] Brian Lee Law Firm, P.L.L.C., Saratoga Springs (Peter M. Califano of Horigan, Horigan &Lombardo, Amsterdam, of counsel), for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Lynch, J.), entered November 22,2011 in Rensselaer County, which denied defendants' motion for summary judgment dismissingthe complaint.
Plaintiff opened the door to defendants' house and called out to see if anyone was there.Defendants were not in the house, but five of their dogs who were inside rushed to the door. Onedog bit plaintiff on the leg. Plaintiff struck the dog that was biting him, at which time the dog bitplaintiff's finger, partially amputating the fingertip. Plaintiff commenced this action to recover forhis injuries. Defendants moved for summary judgment dismissing the complaint. Supreme Courtdenied the motion. Defendants appeal.
The complaint sufficiently pleaded a cause of action for strict liability. A person injured by adomestic animal may not recover from the owner through a traditional negligence cause ofaction, but may hold an owner strictly liable where the owner knows or had notice of the animal'svicious propensities (see Petrone vFernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 599 [2006]; Gordon v Davidson, 87 AD3d769, 769 [2011]). Although plaintiff cited "negligence and or gross negligence" as the basisof his complaint, we must construe pleadings [*2]liberally andignore any defects that do not prejudice the substantial rights of any party (see CPLR3026; Kosowsky v Willard Mtn.,Inc., 90 AD3d 1127, 1128-1129 [2011]). The complaint alleged that plaintiff was bittenby a dog owned by defendants and that "defendants knew said dog to be ferocious, vicious, andaccustomed to attack and bite humans." Thus, regardless of how plaintiff referred to his theory ofrecovery, he sufficiently stated a cause of action to recover for injuries related to the dog bites(see CPLR 3013).
Defendants submitted veterinarian records and their own deposition testimony showing thatthey had owned the border collie named Drake for nine years, he had never bitten anyone oracted aggressively and no one had informed them that Drake ever acted aggressively. Drake hadpassed a canine good citizen test, meeting 10 separate criteria. Defendants also submittedplaintiff's deposition testimony where he stated that he had previously noted defendants' dogs tobe friendly and had never found them to be aggressive. Thus, defendants met their burden ofestablishing a lack of knowledge of vicious propensities, thereby shifting the burden to plaintiff(see Illian v Butler, 66 AD3d1312, 1313 [2009]; Brooks vParshall, 25 AD3d 853, 854 [2006]).
In response, plaintiff pointed to the portion of his deposition testimony where he recounted astatement made by defendant Kathy Chittenden while she drove plaintiff to the hospitalfollowing the incident. Plaintiff testified that Chittenden said, without having gone into her houseor seeing the dogs, "I know the dog that did it, it was Drake." Chittenden testified at herdeposition that she "did not know for sure which dog it was until [she] got home," implying thatshe thought or suspected which dog it was before getting home. Upon returning home, shenoticed that Drake's nose was split open. According to defendants, this nose injury caused themto believe that Drake was the dog that had bitten plaintiff, consistent with plaintiff's assertion thathe struck the biting dog. Chittenden testified that she may have identified Drake because he wastheir oldest dog and had lived in the house the longest, implying that he would be most protectiveof the house. Despite this attempted explanation, Chittenden's statement identifying Drake as thebiter before observing his nose injury raises a factual question as to why she made thatidentification and whether it was based on knowledge of any vicious propensities on Drake'sbehalf (see Morse v Colombo, 8AD3d 808, 809 [2004]). Her explanation creates a credibility question that a jury shouldresolve. Viewing the evidence in a light most favorable to plaintiff, Supreme Court properlydenied defendants' motion for summary judgment.
Spain, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.