- February 27, 2018
Jacobson & Schwartz, LLP, Jericho, NY (Henry J. Cernitz
of counsel), for appellants.
Edelman, Krasin & Jaye, PLLC, Westbury, NY (Kara M. Rosen
and David Yaron of counsel), for respondent.
LEONARD B. AUSTIN, J.P. SHERI S. ROMAN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendants appeal from an order of the Supreme Court, Suffolk
County (John H. Rouse, J.), dated April 14, 2017. The order
denied the defendants' motion for summary judgment
dismissing the complaint.
that the order is reversed, on the law, with costs, and the
defendants' motion for summary judgment dismissing the
complaint is granted.
afternoon of October 31, 2013, the plaintiff allegedly
sustained injuries when she was bitten by the defendants'
dog inside the defendants' house. Subsequently, the
plaintiff commenced this action against the defendants to
recover damages for her personal injuries, alleging
common-law negligence and strict liability. The defendants
moved for summary judgment dismissing the complaint,
contending that their dog did not have vicious propensities,
and that they did not know or have reason to know of such
alleged propensities. The Supreme Court denied the
defendants' motion, and the defendants appeal.
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, 25NY3d
1114, 1116;Hastings v Sauve, 21 N.Y.3d at 125-126;
Petrone v Fernandez, 12 N.Y.3d 546, 550; Xin Kai
Li v Miller, 150 A.D.3d 1051; Bueno v
Seecharan, 136A.D.3d702; Lew v Stratigakis, 135
A.D.3d 832). Accordingly, to the extent that the complaint in
this action alleged a common-law negligence cause of action
to recover damages for injuries caused by the defendants'
dog, the Supreme Court should have awarded summary judgment
to the defendants dismissing that cause 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; Xin Kai Li v
Miller, 150 A.D.3d at 1051; Roche v Bryant, 81
A.D.3d 707, 708).
recover upon a theory of strict liability in tort for damages
caused by a dog, a plaintiff must establish that the dog had
vicious propensities, and that the owner of the dog knew or
should have known of the dog's vicious propensities
(see Petrone v Fernandez, 12 N.Y.3d at 550;
Carroll v Kontarinis, 150 A.D.3d 960; Bueno v
Seecharan, 136 A.D.3d at 702; Matthew H. v County of
Nassau, 131 A.D.3d 135, 144; Palumbo v Nikirk,
59 A.D.3d 691). 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 444, 446; Gammon v Curley, 147 A.D.3d 727,
728; 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, 741;
see Bard v Jahnke, 6 N.Y.3d 592, 597; Collier v
Zambito, 1 N.Y.3d at 446-447; Carroll v
Kontarinis, 150 A.D.3d at 960; Matthew H. v County
of Nassau, 131 A.D.3d at 147).
the defendants established their prima facie entitlement to
judgment as a matter of law by demonstrating that their dog
did not have vicious propensities and, in any event, that
they neither knew nor should have known that their dog
allegedly had vicious propensities (see Collier v
Zambito, 1 N.Y.3d at 446-447; Ioveno v
Schwartz, 139 A.D.3d 1012; Galgano v Town of N.
Hempstead, 41 A.D.3d 536; cf. Matthew H. v County of
Nassau, 131 A.D.3d at 148). In opposition, the plaintiff
failed to raise a triable issue of fact.
the Supreme Court should have granted the defendants'
motion for ...