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Cintorrino v. Rowsell

Supreme Court of New York, Second Department

July 25, 2018

Alison Cintorrino, respondent,
v.
Dorothy Rowsell, et al., appellants. Index No. 601678/15

          Argued - February 27, 2018

          D56165 L/htr

          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

         In an 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.

         ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

         On the 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.

         Aside 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).

         To 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).

         Here, 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.

         Accordingly, the Supreme Court should have granted the defendants' motion for ...


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