SONYA J. O'HARA, PLAINTIFF-APPELLANT,
HOLIDAY FARM, DONALD SCHWARTZ, MARCIA SCHWARTZ AND CHRISTINA PIEMONTE, DEFENDANTS-RESPONDENTS.
WILLIAM MATTAR, P.C., WILLIAMSVILLE (MATTHEW J. KAISER OF
COUNSEL), FOR PLAINTIFF-APPELLANT.
BARCLAY DAMON, LLP, SYRACUSE (MATTHEW J. LARKIN OF COUNSEL),
FOR DEFENDANT-RESPONDENT CHRISTINA PIEMONTE.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, DEJOSEPH, AND
from an order of the Supreme Court, Oswego County (James W.
McCarthy, J.), entered March 4, 2016. The order, among other
things, granted the motion of defendant Christina Piemonte
for summary judgment dismissing the amended complaint against
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Plaintiff commenced this action seeking damages for injuries
she allegedly sustained when her vehicle collided with a
horse owned by Christina Piemonte (defendant). The horse had
escaped from a stall at defendant Holiday Farm, which was
owned and operated by defendants Donald Schwartz and Marcia
Schwartz. Plaintiff, as limited by her brief, appeals from an
order that, inter alia, granted defendant's motion for
summary judgment dismissing the amended complaint against
her. As a preliminary matter, we note Supreme Court's
failure to set forth its reasons for granting defendant's
motion (see generally McMillian v Burden, 136 A.D.3d
to plaintiff's contention, the court properly granted
that part of defendant's motion for summary judgment
dismissing the amended complaint against her insofar as it
alleges common-law negligence. A horse is classified as a
"[d]omestic animal" in Agriculture and Markets Law
§ 108 (7), and it is well established that "a
landowner or the owner of an animal may be liable under
ordinary tort-law principles when a farm animal-i.e., a
domestic animal as that term is defined in Agriculture and
Markets Law § 108 (7)-is negligently allowed to stray
from the property on which the animal is kept"
(Hastings v Suave, 21 N.Y.3d 122, 125-126).
Nevertheless, defendant established as a matter of law that
" the animal's presence on the [road] was not caused
by [her] negligence' " (Johnson v Waugh,
244 A.D.2d 594, 596, lv denied 91 N.Y.2d 810),
inasmuch as Holiday Farm was solely responsible for keeping
the horse confined in a stall or other enclosure at the
facility at all times, and defendant last visited the horse
at Holiday Farm four days prior to the incident. Although
"[a]n inference of negligence arises under the doctrine
of res ipsa loquitur when the plaintiff establishes that the
event does not ordinarily occur in the absence of negligence
and that the agency or instrumentality causing the injury is
within the exclusive control of the defendant"
(Loeffler v Rogers, 136 A.D.2d 824, 824; see
Emlaw v Clark, 26 A.D.3d 790, 791), the record
establishes that defendant was not in exclusive control of
the horse or the barn and stalls where the horse was kept.
Plaintiff's contention that defendant is vicariously
liable for the negligence of a horse trainer who was at
Holiday Farm the day before the incident is not properly
before us inasmuch as it is raised for the first time on
appeal (see Ciesinski v Town of Aurora, 202 A.D.2d
to plaintiff's further contention, the court properly
granted that part of defendant's motion for summary
judgment dismissing the amended complaint against her insofar
as it alleges strict liability (see generally Vichot v
Day, 80 A.D.3d 851, 852). Defendant met her initial
burden by "establishing that [she] did not know of any
vicious propensities on the part of [her horse]"
(Doerr v Goldsmith, 25 N.Y.3d 1114, 1116; see
Tennant v Tabor, 89 A.D.3d 1461, 1462), inasmuch as the
testimony and sworn statements of defendant and Donald
Schwartz established that, prior to the incident,
defendant's horse had never escaped from a stall or any
other similar enclosure, was never violent, and had never
harmed anyone. In opposition, plaintiff failed to demonstrate
the existence of a triable issue of fact whether defendant
had notice of any harmful or vicious propensities .
There is no evidence in the record that the horse's
behavior was " abnormal to its class' "
(Tennant, 89 A.D.3d at 1463), or constituted
"atypical equine behavior" (Bloomer v
Shauger, 94 A.D.3d 1273, 1275, affd 21 N.Y.3d
917). Furthermore, even assuming, arguendo, that the horse
had a propensity to kick or destroy his stall, we conclude
that such propensity did not result in the injury giving rise
to the lawsuit (see Bloomer, 94 A.D.3d at 1275).
Here, after the horse's escape, ...