L. Juliano, P.C., East Northport, NY, for appellants.
Richard T. Lau, Jericho, NY (Nancy S. Goodman of counsel),
PRISCILLA HALL, J.P., JEFFREY A. COHEN, BETSY BARROS,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court, Suffolk
County (Pastoressa, J.), dated December 1, 2015, which
granted the defendants' motion for summary judgment
dismissing the complaint.
that the order is affirmed, with costs.
she was walking in the backyard of the defendants'
premises, the plaintiff Kathleen Gammon (hereinafter the
injured plaintiff) allegedly was knocked to the ground by the
defendants' dog. The injured plaintiff alleged that the
defendants' dog ran at her full speed, jumped up on its
hind legs, and made contact with the upper part of her chest,
causing her to fall backwards to the ground. The injured
plaintiff, and her husband suing derivatively, commenced this
action seeking damages. The defendants moved for summary
judgment dismissing the complaint, contending that the dog
did not previously demonstrate any vicious propensities. The
Supreme Court granted the motion, and the plaintiffs appeal.
Supreme Court correctly held that New York does not recognize
a common-law negligence cause of action for injuries
allegedly caused by a domestic animal (see Petrone v
Fernandez, 12 N.Y.3d 546; Egan v Hom, 74 A.D.3d
recover in strict liability in tort for damages caused by a
dog, the plaintiff must establish that the dog had vicious
propensities and that the owner knew or should have known of
the dog's vicious propensities (see Petrone v
Fernandez, 12 N.Y.3d at 550; Bueno v Seecharan,
136 A.D.3d 702; Matthew H. v County of Nassau, 131
A.D.3d 135, 144). "Vicious propensities include the
propensity to do any act that might endanger the safety of
the persons and property of others in a given situation"
(Bard v Jahnke, 6 N.Y.3d 592, 596-597 [internal
quotation marks omitted]). Indeed, "[a] known tendency
to attack others, even in playfulness, as in the case of the
overly friendly large dog with a propensity for enthusiastic
jumping up on visitors, will be enough to make the defendant
liable for damages resulting from such an act"
(Anderson v Carduner, 279 A.D.2d 369, 369-370
[internal quotation marks omitted]; see Earl v
Piowaty, 42 A.D.3d 865).
defendants' submissions, including the deposition
testimony of the defendants and the plaintiffs, as well as
the defendants' affidavits, demonstrated that prior to
the subject incident, the dog was not aggressive, and did not
growl or spontaneously jump on people in the fashion
described by the injured plaintiff. The defendants did not
restrain the dog to keep it away from guests in their home.
Accordingly, the defendants established their prima facie
entitlement to judgment as a matter of law (see
Hodgson-Romain v Hunter, 72 A.D.3d 741; Levine v
Kadison, 70 A.D.3d 651, 652; Debellas v
Verrill, 53 A.D.3d 593, 594; Rodrigues v Norte,
40 A.D.3d 1068; Cameron v Harari, 19 A.D.3d 631;
Slacin v Aquafredda, 2 A.D.3d 624, 625; Althoff
v Lefebvre, 240 A.D.2d 604, 604).
opposition, the plaintiffs failed to raise a triable issue of
fact. While the plaintiffs note that the defendants
"trained" their dog to jump up on them on command,
the deposition testimony of the defendants made clear that
the dog only did so when prompted and only on immediate
family members. They specifically testified that their dog
had never jumped on an individual outside the immediate
family. Such a jump on command is very different from the
type of jump described by the injured plaintiff (see
Clark v Heaps, 121 A.D.3d 1384; Hamlin v
Sullivan, 93 A.D.3d 1013, 1014-1015).
plaintiffs' remaining contention is without merit.
the Supreme Court properly granted the defendants' motion
for summary judgment dismissing the complaint (see Cohen
v Kretzschmar, 30 A.D.3d 555, ...