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Petrone v. Fernandez

June 9, 2009

MELANIE PETRONE, RESPONDENT,
v.
BERNARD FERNANDEZ, DEFENDANT, JAMES MCCLOY, APPELLANT.



The opinion of the court was delivered by: Read, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

On May 9, 2005, plaintiff Melanie Petrone, a mail carrier employed by the United States Postal Service, was making the rounds on a "drive-out" mail route in Douglaston, Queens. At about 11:30 A.M., she parked her Honda Accord along the side of a one-way roadway, directly across the street from the house where defendant James McCloy resided at the time. The house's front door is set back about 15 feet from the sidewalk, and the lawn slopes down toward the street. The lawn is unfenced. As plaintiff got out of her car, she observed at least two landscapers working on the house's lawn. After she had walked about six feet toward the house, plaintiff also saw a dog --defendant's then nine-year-old rottweiler -- lying on the lawn, unleashed. She immediately "turned back to walk back to [her] vehicle," intending to skip the mail delivery because of the unrestrained dog, a postal procedure she called "flagging" a house.

According to plaintiff, when she was about four feet from her car, she "turned to see if the dog had moved and the dog had proceeded to run at [her] from the top of the hill"; and had come to within approximately six feet of her.*fn1 She "ran" the short remaining distance to her car, and "tried to jump through" the open window on the driver's side "[l]egs first." As plaintiff describes what she did, she "grabbed" the car and flung her right leg through the open window, jamming her right middle finger on "[t]he outside of the doorframe where the window comes down" as she executed this maneuver. She ended up stuck in an awkward position -- with her right leg inside the car and her left leg outside -- and "screaming . . . for someone to help."

The dog was "right next to [her]," but "did not do anything." Plaintiff does not recall whether the dog ever barked at her. In other words, the dog did not bite or threaten or apparently make any contact whatsoever with plaintiff.

Plaintiff's cries attracted the landscapers' attention and assistance. And defendant, who was near the house, "yelled for the dog to come back," and the dog obeyed. Defendant then approached plaintiff, and they had a conversation that "was just about panic and [defendant] had come over to say that the dog's okay, he doesn't do anything," and plaintiff was "just very scared at that point. Just letting [defendant] know how nervous [she] was at that point."

Plaintiff handed defendant his mail, and continued on her rounds. Soon, however, she "felt pain" in her right middle finger, which "began to bruise." She called her shop steward to tell him what had happened and he, in turn, informed her manager. The manager met and accompanied plaintiff to a nearby medical facility where her injured finger was x-rayed, and diagnosed as "possibl[y] fracture[d]." As a result of this diagnosis, plaintiff's right middle finger was splinted for about five weeks, and taped to the adjoining finger for an additional week or so; no medication was ever prescribed to her for the injury. Plaintiff missed about six weeks of work, but was paid her full salary during the absence. At the time of her deposition, 10 months after the incident, plaintiff complained that the finger "still ache[d]," especially in the "colder weather," and was "hard to bend . . . still." In addition, she could not "really put any pressure on it," and had "a hard time opening bottles." Plaintiff also was required to "vary her work" when "do[ing] what's called, 'finger[ing] the mail'" on account of the residual stiffness of her finger.

In September 2005, plaintiff sued defendant and the owner of the house for personal injuries as a result of her encounter with the dog. She alleged a first cause of action based on defendants' supposed knowledge of the dog's "prior history of vicious propensities"; and a second cause of action for negligence because of defendants' "violation of . . . laws, statute[s], regulation[s], and ordinance[s]." The second cause of action was essentially premised on the local leash law, section 161.05 (a) of the New York City Health Code (24 RCNY 161.05 [a]), which provides that "a person who owns, possesses or controls a dog shall not permit it to be in a public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than six feet long" (emphasis added).

In May 2006, the owner of the house sought summary judgment dismissing the complaint. Citing our decision in Collier v Zambito (1 NY3d 444 [2004]), he observed that there was "no indication that either of the defendants had any knowledge of any type of vicious propensities," or "that the dog[] in question actually did anything vicious." He also pointed out that he did not own the dog and was not present when the complained-of events took place. Defendant supported his co-defendant's motion, stating that although plaintiff "trie[d] to distinguish this case by claiming 'common law negligence' . . ., it is or should be clear that, just as in a 'dog bite' case, a vicious propensity must be shown in an alleged 'dog chase' case," and that "[n]o such showing has or can be made."

Supreme Court issued a decision, dated November 29, 2006, granting the motion and, after searching the record, dismissing the complaint against both defendants. The court noted that the owner of the house had made out a prima facie case of entitlement to summary judgment by showing that he had no knowledge of the dog's vicious propensities; that "the dog, in fact, neither had vicious propensities nor behaved in a manner that reflect[ed] a proclivity to act in a way that put others at risk of harm"; and that "the dog's alleged conduct that resulted in plaintiff's injuries was not vicious or reasonably foreseeable." Further, plaintiff failed to rebut this prima facie case "with evidence establishing either the existence of the [dog's] alleged vicious propensities or [the owner of the house's] knowledge thereof." Supreme Court opined that "the mere fact that the dog was unrestrained at the time of the subject incident [does] not raise a triable issue of fact as liability cannot be premised solely on the fact that defendant . . . left the dog unrestrained."

Plaintiff subsequently took an appeal, which she limited to the trial court's dismissal of her negligence cause of action against both defendants. The Appellate Division held, contrary to the Third Department's decision in Alia v Fiorina (39 AD3d 1068 [3d Dept 2007]), that a dog owner "may be held liable to a plaintiff based upon an alleged violation of a local leash ordinance and the dog's behavior, even though the dog ha[s] not displayed any prior vicious propensities" (Petrone v Fernandez, 53 AD3d 221, 222 [2d Dept 2008]). As a consequence, the court deleted the provision of Supreme Court's order which awarded summary judgment dismissing the negligence cause of action against defendant. The Appellate Division has asked us if this portion of its order was properly made, and we conclude that it was not.

"[W]hen harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier" (Bard v Jahnke, 6 NY3d 592, 599 [2006] [emphasis added]) -- i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities (see Collier, 1 NY3d at 446-447; see also Bard, 6 NY3d at 601 [R. S. Smith, J., dissenting] [objecting to "the rule . . . adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face -- that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned"]). Just last year we unanimously affirmed an Appellate Division decision rejecting the notion that a negligence cause of action survives Collier and Bard (see Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008], affg 40 AD3d 224 [1st Dept 2007]). Here, defendant's violation of the local leash law is "irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability" after Collier and Bard (Alia, 39 AD3d at 1069).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs; that part of Supreme Court's order dismissing the second cause of action against defendant James McCloy should be reinstated; and the certified question should be answered in the negative.

PIGOTT, J. (concurring):

I write separately to make clear that, while I concur with the majority in this case, I do so on constraint of ...


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