Nicholas Abrahams, an infant by his mother and natural guardian, Ann Marie Reid, et al., appellants,
City of Mount Vernon, respondent, et al., defendant. Index No. 15424/10
Argued-May 8, 2017
Mitchell Dranow, Sea Cliff, NY, for appellants.
Lawrence A. Porcari, Jr., Corporation Counsel, Mount Vernon,
NY (Brian G. Johnson of counsel), for respondent.
C. DILLON, J.P. JEFFREY A. COHEN COLLEEN D. DUFFY FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
plaintiffs appeal from an order of the Supreme Court,
Westchester County (Adler, J.), entered March 27, 2015, which
granted the motion of the defendant City of Mount Vernon for
summary judgment dismissing the complaint insofar as asserted
that the order is affirmed, with costs.
August 17, 2009, then 11-year-old Nicholas Abrahams
(hereinafter the infant plaintiff) was attacked and injured
by a pit bull mixed breed dog. At the time of the incident,
the infant plaintiff was visiting the Mount Vernon Animal
Shelter (hereinafter the Shelter) at the invitation of his
older brother, who was a volunteer there. The infant
plaintiff allegedly was walking in the back kennel area of
the Shelter with another volunteer when the dog, which was
not in a cage, jumped on him and bit him. The infant
plaintiff, by his mother, and his mother, individually,
commenced this action against the City of Mount Vernon and
the Shelter. After discovery was completed, the City moved
for summary judgment dismissing the complaint insofar as
asserted against it. The Supreme Court granted the motion,
and the plaintiffs appeal.
York does not recognize a common-law negligence cause of
action to recover damages for injuries caused by a domestic
animal'" (Lew v Stratigakis, 135 A.D.3d
832, 832, quoting Egan v Hom, 74 A.D.3d 1133, 1134).
For more than 200 years, "the law of this state has been
that the owner of a domestic animal who either knows or
should have known of that animal's vicious propensities
will be held liable for the harm the animal causes as a
result of those propensities" (Collier v
Zambito, 1 N.Y.3d 444, 446). "Once this knowledge
is established, the owner faces strict liability"
(Bard v Jahnke, 6 N.Y.3d 592, 597).
the plaintiffs seek to hold a municipality liable for damages
allegedly caused by a dog in its care. It is undisputed that
the City operates the Shelter pursuant to a statutory
mandate. Specifically, Agriculture and Markets Law § 114
(former § 115) requires, inter alia, that each town or
city that issues dog licenses "shall . . . establish and
maintain a pound or shelter for dogs" (Agriculture and
Markets Law § 114 [former § 115(1)]). This
provision is contained in article 7 of the Agriculture and
Markets Law, which states that the purpose of the article
"is to provide for the licensing and identification of
dogs, the control and protection of the dog population and
the protection of persons, property, domestic animals and
deer from dog attack and damage" (Agriculture and
Markets Law § 106).
City's act of providing an animal shelter constitutes a
governmental function and, therefore, it cannot be held
liable absent the existence of a special relationship between
it and the plaintiffs giving rise to a special duty of care
(see McLean v City of New York, 12 N.Y.3d 194, 199;
Delaney v City of Mount Vernon, 68 A.D.3d 710;
Browne v Town of Hempstead, 110 A.D.2d 102, 108).
"'A special relationship can be formed in three
ways: (1) when the municipality violates a statutory duty
enacted for the benefit of a particular class of persons; (2)
when it voluntarily assumes a duty that generates justifiable
reliance by the person who benefits from the duty; or (3)
when the municipality assumes positive direction and control
in the face of a known, blatant and dangerous safety
violation'" (McLean v City of New York, 12
N.Y.3d at 199, quoting Pelaez v Seide, 2 N.Y.3d 186,
City established its entitlement to judgment as a matter of
law dismissing the complaint insofar as asserted against it
by submitting evidence demonstrating that there was no
special relationship between it and the plaintiffs, as it was
performing a governmental function for the benefit of the
general public (see McLean v City of New York, 12
N.Y.3d at 200-201; Browne v Town of Hempstead, 110
A.D.2d at 108), it did not voluntarily assume a duty toward
the plaintiffs, and it did not affirmatively act to place the
infant plaintiff in harm's way (see Sutton v City of
New York, 119 A.D.3d 851). In any event, contrary to the
plaintiffs' contention, the City demonstrated, prima
facie, through the deposition testimony of an assistant
animal warden at the Shelter and a veterinarian who provides
veterinary services to the City, that it neither knew nor
should have known of any vicious propensities on the part of
the dog that attacked and bit the infant plaintiff (see
Galgano v Town of N. Hempstead, 41 A.D.3d 536). In
opposition, the plaintiffs failed to raise a triable issue of
fact (see id.).
plaintiffs' remaining contention is without merit.
the Supreme Court properly granted the City's motion for
summary judgment dismissing the ...