J. Toomey, New York, NY (Michael J. Kozoriz of counsel), for
Shkolnik, PLLC (Mischel & Horn, P.C., New York, NY [Scott
T. Horn and Stephanie A. Staal], of counsel), for respondent.
C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendants appeal, as limited by their brief, from so much of
an order of the Supreme Court, Kings County (Solomon, J.),
dated December 3, 2015, as denied their motion for summary
judgment dismissing the complaint.
that the order is reversed insofar as appealed from, on the
law, with costs, and the defendants' motion for summary
judgment dismissing the complaint is granted.
from the limited exception set forth in Hastings v
Sauve (21 N.Y.3d 122, 125-126), regarding a farm animal
that strays from the place where it is kept (see Carey v
Schwab, 122 A.D.3d 1142, 1143-1145), which is not at
issue here, "New York does not recognize a common-law
negligence cause of action to recover damages for injuries
caused by a domestic animal" (Egan v Hom, 74
A.D.3d 1133, 1134; see Doerr v Goldsmith, 25 N.Y.3d
1114, 1116; Hastings v Sauve, 21 N.Y.3d at 125-126;
Petrone v Fernandez, 12 N.Y.3d 546, 550; Bueno v
Seecharan, 136 A.D.3d 702; Lew v Stratigakis,
135 A.D.3d 832). Accordingly, to the extent that the
complaint in this action alleged common-law negligence causes
of action to recover damages for injuries caused by the
defendants' dog, the Supreme Court should have awarded
summary judgment to the defendants dismissing those causes of
action (see Doerr v Goldsmith, 25 N.Y.3d at 1116;
Hastings v Sauve, 21 N.Y.3d at 125-126; Petrone
v Fernandez, 12 N.Y.3d at 550; Roche v Bryant,
81 A.D.3d 707, 708).
to the defendants' contention, the complaint asserted a
cause of action premised on strict liability (see
generally Scoyni v Chabowski, 72 A.D.3d 792, 793).
"To recover upon a theory of strict liability in tort
for a dog bite or attack, a plaintiff must prove that the dog
had vicious propensities and that the owner of the dog...
knew or should have known of such propensities"
(Palumbo v Nikirk, 59 A.D.3d 691, 691; see
Petrone v Fernandez, 12 N.Y.3d at 550; Collier v
Zambito, 1 N.Y.3d 444, 446; Roche v Bryant, 81
A.D.3d 707; Ayres v Martinez, 74 A.D.3d 1002).
Vicious propensities include the propensity to do any act
that might endanger the safety of the persons and property of
others (see Collier v Zambito, 1 N.Y.3d at 446;
Dickson v McCoy, 39 NY 400, 403; Gammon v
Curley, 147 A.D.3d 727; Claps v Animal Haven,
Inc., 34 A.D.3d 715, 716). "Evidence tending to
prove that a dog has vicious propensities includes a prior
attack, the dog's tendency to growl, snap, or bare its
teeth, the manner in which the dog was restrained, and a
proclivity to act in a way that puts others at risk of
harm" (Hodgson-Romain v Hunter, 72 A.D.3d 741;
see Bard v Jahnke, 6 N.Y.3d 592, 597; Velez v
Andrejka, 126 A.D.3d 685, 686).
in support of their motion for summary judgment dismissing
the complaint, the defendants established, prima facie, that
the subject dog did not have vicious propensities (see
Collier v Zambito, 1 N.Y.3d at 447; Ioveno v
Schwartz, 139 A.D.3d 1012, 1013; Jackson v
Georgalos, 133 A.D.3d 719, 720; Roche v Bryant,
81 A.D.3d at 708; Ayres v Martinez, 74 A.D.3d at
1002). They submitted the deposition testimony of the
defendant Cynthia J. Miller, who testified that the dog had
been living with the defendants' family for about four
years prior to the incident, that the dog had "full
range of the downstairs" area of the house, and that it
had never attacked, bitten, or chased anyone. In opposition,
the plaintiff failed to raise a triable issue of fact.
the Supreme Court should have granted the defendants'
motion for ...