| Bloom v Van Lenten |
| 2013 NY Slip Op 03542 [106 AD3d 1319] |
| May 16, 2013 |
| Appellate Division, Third Department |
| Mary Bloom, Respondent, v Howard Van Lenten,Appellant, et al., Defendant. |
—[*1] Greenberg & Greenberg, Hudson (Michael J. Hutter of Powers & Santola, LLP,Albany, of counsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Nichols, J.), entered January26, 2012 in Columbia County, which, among other things, partially denied defendantHoward Van Lenten's motion for summary judgment dismissing the complaint againsthim.
Plaintiff is a professional freelance canine photographer. In 2005, she metdefendants, Howard Van Lenten and Tom Carty, who reside together at a home ownedby Van Lenten, where they operate a dog breeding business. In July 2007, plaintiffvisited defendants' home to photograph their English labrador retriever puppies,including a puppy named Delilah. Approximately three years later, plaintiff again visiteddefendants' home on two occasions for the purpose of photographing their new puppies.On the second of those visits, plaintiff was in defendants' backyard, whereDelilah—who then weighed approximately 50 pounds—and three otherfull-grown dogs were running and playing. As Delilah was being chased by the otherdogs, she ran into the back of plaintiff's leg, knocking her forward and onto the ground.As a result, plaintiff sustained serious injuries.
Consequently, plaintiff commenced this action against defendants asserting causes ofaction sounding in negligence and strict liability. After issue was joined, defendantsseparately moved for summary judgment dismissing the complaint. Supreme Courtpartially granted the [*2]motions by dismissing thenegligence cause of action, but, among other things, denied the motions with respect tothe strict liability claim, finding questions of fact as to whether Delilah had viciouspropensities of which defendants were aware. Van Lenten now appeals and we modify.
It is well established that " 'the owner of a domestic animal who either knows orshould have known of that animal's vicious propensities will be held liable for the harmthe animal causes as a result of those propensities' " (Bard v Jahnke, 6 NY3d 592, 596 [2006], quoting Collier v Zambito, 1 NY3d444, 446 [2004]; seeHamlin v Sullivan, 93 AD3d 1013, 1013 [2012]). As the movants, it wasdefendants' burden to establish that they had no prior knowledge that Delilah had anyvicious propensities (see Reil vChittenden, 96 AD3d 1273, 1274 [2012]; Thurber v Apmann, 91 AD3d 1257, 1257 [2012]).Notably, a vicious propensity does not necessarily have to be "dangerous or ferocious"but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, solong as " 'such proclivity results in the injury giving rise to the lawsuit' " (Hamlin vSullivan, 93 AD3d at 1014, quoting Collier v Zambito, 1 NY3d at 447).Nonetheless, "normal canine behavior" is insufficient to establish a vicious propensity(Collier v Zambito, 1 NY3d at 447; see Hamlin v Sullivan, 93 AD3d at1014; Earl v Piowaty, 42AD3d 865, 866 [2007]; Seybolt v Wheeler, 42 AD3d 643, 645 [2007]).
Here, Supreme Court correctly found that defendants met their initial burden ofestablishing their lack of knowledge of vicious propensities with regard to Delilah, thusshifting the burden to plaintiff to demonstrate the existence of a triable issue of fact(see Reil v Chittenden, 96 AD3d at 1274; Hagadorn-Garmely v Jones,295 AD2d 801, 801 [2002]). To that end, plaintiff offered her deposition testimony andaffidavit in which she alleges that, after the incident, Van Lenten and Carty each told herthat Delilah had previously done to them the same thing she had done to plaintiff.However, this evidence, even when viewed in the light most favorable to plaintiff(see Reil v Chittenden, 96 AD3d at 1274; Thurber v Apmann, 91 AD3dat 1258), is insufficient to establish issues of fact regarding Delilah's vicious propensity.Plaintiff's claim here is that Delilah knocked her down by running into her as the dog wasrunning and playing in the backyard with other dogs. Plaintiff does not allege that thedog jumped on her, bit her or otherwise took any purposeful action that was directed ather. Delilah's act of running into plaintiff in the course of being playfully chased by otherdogs merely consisted of normal canine behavior that does not amount to a viciouspropensity (see Hamlin v Sullivan, 93 AD3d at 1015; Bloomer v Shauger, 94 AD3d1273, 1274 [2012], affd 21 NY3d 917 [2013]). Accordingly, defendantsconclusively demonstrated that they lacked knowledge of a vicious propensity onDelilah's part, entitling them to summary judgment dismissing the complaint.[FN*]
Peters, P.J., Rose and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, with costs to defendant Howard Van Lenten, by reversing so much thereof as denieddefendants' motions; motions granted in their entirety, summary judgment awarded todefendants and complaint dismissed; and, as so modified, affirmed.
Footnote *: Pursuant to this Court'sauthority to grant summary judgment to a nonappealing party (see Shields v Carbone, 78AD3d 1440, 1443 n 2 [2010]), we have searched the record and find it appropriateto also dismiss the complaint against Carty.