Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Olsen v. Campbell

Supreme Court of New York, Third Department

May 11, 2017

STEPHANIE OLSEN, Individually and as Parent of AIRIANA RONEY, an Infant, Appellant,
v.
ALAN CAMPBELL, Respondent.

          Calendar Date: March 29, 2017

          Abdella Law Offices, Gloversville (Robert Abdella of counsel), for appellant.

          Gozigian, Washburn & Clinton, Cooperstown (Edward Gozigian of counsel), for respondent.

          Before: Peters, P.J., McCarthy, Egan Jr., Mulvey and Aarons, JJ.

          MEMORANDUM AND ORDER

          Mulvey, J.

         Appeal from an order of the Supreme Court (Ferreira, J.), entered June 27, 2016 in Schoharie County, which granted defendant's motion for summary judgment dismissing the complaint.

         In April 2014, plaintiff's three-year-old daughter was bitten on the face by defendant's dog, a 12-year-old Siberian husky. The attack took place while the child was visiting her grandmother, defendant's girlfriend, at defendant's premises. Plaintiff commenced this action to recover damages for the child's injuries. Defendant answered and thereafter moved for summary judgment dismissing the complaint. Supreme Court granted defendant's motion finding that defendant met his burden of proving that he had no prior knowledge of the dog's vicious propensities and plaintiff failed to raise a triable issue of fact. Plaintiff appeals.

         On a motion for summary judgment, the movant has the "burden to establish 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013], quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see CPLR 3212 [b]). In the context of a defendant's motion for summary judgment in a dog bite or attack case, the "defendant bears an initial burden to demonstrate that, prior to the incident giving rise to the lawsuit, he or she was without knowledge that the animal possessed any vicious or dangerous propensities" (Gannon v Conti, 86 A.D.3d 704, 705 [2011]; see Miletich v Kopp, 70 A.D.3d 1095, 1095 [2010]). Only if the defendant meets this initial burden, does the burden then shift to the plaintiff "to raise a triable question of fact as to whether defendant[] knew or should have known that [his or her] dog had... vicious propensities" (Buicko v Neto, 112 A.D.3d 1046, 1047 [2013]). "Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities" (Collier v Zambito, 1 N.Y.3d 444, 448 [2004] [citation omitted]). "In this procedural setting, all evidence must be viewed in the light most favorable to [the] plaintiff" (Czarnecki v Welch, 13 A.D.3d 952, 953 [2004] [citations omitted]; see Calabro v Bennett, 291 A.D.2d 616, 616 [2002]). We find that defendant did not satisfy his initial burden and, accordingly, we reverse.

         On his motion, along with his deposition testimony, defendant submitted the deposition testimony of his girlfriend and that of plaintiff. However, rather than showing that he was entitled to summary judgment, the deposition testimony showed just the opposite. Defendant testified that the dog was chained outside in order to alert him to the presence of people in his yard and to protect business assets on his property. He testified that the dog is "there to bark" and that barking and running to the full extent of its chain when people enter the property is the dog's "job." Defendant described an incident three to five years prior to the instant bite in which the dog grabbed a customer's pant leg, though defendant claimed that the dog did not break any skin. We note that, even if the dog had not broken the person's skin, such aggressive behavior may reflect a proclivity to act in such a way that puts others at risk of harm and can be found to be evidence of a vicious propensity (see Morse v Colombo, 8 A.D.3d 808, 809 [2004]).

         Notably, the following exchange took place during defendant's deposition:

"Q. And you have her on a chain, she'll run to the end of the chain as far as she can go, but the chain holds her back from being able to go any further?
A. Correct.
Q. And to prevent her from biting the people that come on the property?
A. Correct. Correct. She has actually gotten off the chain when people were there and she hasn't bit ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.