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Scavetta v. Wechsler

Supreme Court of New York, First Department

March 16, 2017

Gregory Scavetta, et al., Plaintiffs-Appellants,
v.
Stuart Wechsler, Defendant-Respondent.

         Plaintiffs appeal from the order of the Supreme Court, New York County (Carol R. Edmead, J.), entered April 28, 2016, which granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiffs' cross motion for summary judgment on the issue of liability.

          Seiden & Kaufman, Carle Place (Steven J. Seiden of counsel), for appellants.

          Devitt Spellman Barrett, LLP, Smithtown (Maggie O'Connor and John M. Denby of counsel), for respondent.

          Rolando T. Acosta, J.P., Dianne T. Renwick, Karla Moskowitz, Paul G. Feinman, Marcy L. Kahn, JJ.

          ACOSTA, J.P.

         The primary question raised in this appeal is whether a negligence claim may be asserted against a defendant who attached a dog's leash to an unsecured bicycle rack, which was put into motion when the dog dragged it through the streets and into the plaintiff, causing injury. We answer in the negative, on constraint of the Court of Appeals' Bard rule that " when harm is caused by a domestic animal, its owner's liability is determined solely by application of 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" (Petrone v Fernandez, 12 N.Y.3d 546, 550 [2009], quoting Bard v Jahnke, 6 N.Y.3d 592, 599 [2006]). Therefore, we must affirm the order of the motion court, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint.

         At the same time, we take this opportunity to acknowledge plaintiffs' persuasive argument that the Bard rule may be neither prudent law nor prudent policy. As this case illustrates, a plaintiff cannot recover for injuries caused by a dog that has not demonstrated vicious propensities, even when the injuries are proximately caused by the owner's negligent conduct in controlling or failing to control the dog. This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the State of New York without recourse.

         Facts and Background

         On March 24, 2014, defendant was walking his dog on the way to meet a friend at a pizzeria on Lexington Avenue between 93rd and 94th Streets in Manhattan. Upon arriving at the restaurant, he tied the 35-pound dog by its leash to a metal bicycle rack, which weighed about five pounds and had dimensions of approximately 3 feet by 3 feet by 2 feet. The rack was of the sort to which cyclists or bicycle delivery workers ordinarily lock their bicycles for security outside of buildings.

         Defendant did not assure himself, however, that the rack was secured to the ground or to anything else. As he reached the entrance of the pizzeria, defendant heard the rack scraping against the sidewalk and turned to see his dog running down the street, pulling the rack with its leash. It appeared to defendant that the dog started to follow him as he approached the restaurant but was frightened by the noise of the rack scraping against the sidewalk and began to run. The dog was not chasing anything, but it was running "[v]ery fast" and was "panicked." Defendant started running after his dog, but was unable to catch up to it.

         Meanwhile, plaintiff Gregory Scavetta was on his way to work, walking north on Lexington Avenue, and began to cross 93rd Street in the crosswalk. As he crossed the street, Scavetta heard the scraping of the rack and saw the dog running straight towards him, dragging the rack behind it. The dog ran past Scavetta and hid underneath a car. Scavetta then took one or two steps toward the dog, to see if it was injured and whether he could disconnect the rack from the leash, but the dog immediately "sprung back out from underneath the car and took off again." The dog ran back towards Scavetta, still dragging the rack, which struck him. One of Scavetta's legs got caught in the rack's crossbars, and, as the dog continued to pull the rack, Scavetta was spun around so that both of his feet went up in the air and he landed on his back.

         The dog ran off toward Park Avenue. Defendant recovered the dog approximately two hours later, after his dog walker found the dog at Lexington Avenue and 86th Street. Scavetta was taken to Mt. Sinai Hospital and treated for an injury to his left leg.

         Scavetta and his wife commenced this action, alleging among other things that defendant was negligent or reckless in tying his dog to the unsecured bicycle rack, because he knew or should have known that the dog could pull it. Plaintiffs did not assert a cause of action sounding in strict liability, and stated in their verified bill of particulars that "the dog's viciousness is not an element of plaintiff[s'] cause of action."

         Defendant moved for summary judgment dismissing the complaint, arguing among other things that New York State does not recognize negligence as a cause of action for injuries caused by domestic animals. Plaintiffs cross-moved for summary judgment on the issue of liability, noting that they "intentionally did not comment about strict liability in their Bill of Particulars, " since the action "does not involve vicious propensities of the dog." To the contrary, plaintiffs argued, defendant is liable "for negligently creating an extremely dangerous condition and unreasonable risk of harm to others." Plaintiffs explained that, "[b]y attaching the dog's eight-foot leash to an unsecured, flimsy, light metal bicycle rack that defendant knew, or should have known, the ...


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