Opinion
487 CA 18–02145
07-31-2019
CHRISTOPHER P. and Amber M., as Parents and Natural Guardians of Adrianna M.P., an Infant, Plaintiffs–Respondents, v. KATHLEEN M.B., Defendant–Appellant.
BURGIO, CURVIN & BANKER, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR DEFENDANT–APPELLANT. DOLCE PANEPINTO, P.C., BUFFALO (EDWARD L. SMITH, III, OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
BURGIO, CURVIN & BANKER, BUFFALO (JAMES P. BURGIO OF COUNSEL), FOR DEFENDANT–APPELLANT.
DOLCE PANEPINTO, P.C., BUFFALO (EDWARD L. SMITH, III, OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: WHALEN, P.J., PERADOTTO, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Plaintiffs Christopher P. and Amber M., as parents and natural guardians of Adrianna M.P., their daughter, commenced actions that were thereafter consolidated seeking to recover damages for injuries that the daughter sustained during an interaction with defendant's dogs. Supreme Court granted plaintiffs' motion for partial summary judgment on the issue of liability. We reverse.
It is well established 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, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ). Such knowledge "may ... be established by proof of prior acts of a similar kind of which the owner had notice" ( id. ). "Vicious propensities include the ‘propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ " ( id. , quoting Dickson v. McCoy , 39 N.Y. 400, 403 [1868] ; see Meka v. Pufpaff , 167 A.D.3d 1547, 1547–1548, 90 N.Y.S.3d 448 [4th Dept. 2018] ; Marquardt v. Milewski , 288 A.D.2d 928, 928, 732 N.Y.S.2d 801 [4th Dept. 2001] ). Thus, "an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit" ( Collier , 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; see Long v. Hess , 162 A.D.3d 1646, 1647, 78 N.Y.S.3d 588 [4th Dept. 2018] ). "Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm" ( Ioveno v. Schwartz , 139 A.D.3d 1012, 1012, 32 N.Y.S.3d 297 [2d Dept. 2016], lv denied 28 N.Y.3d 905, 2016 WL 6209267 [2016] ; see Bard v. Jahnke , 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006] ; Collier , 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 ). "In contrast, ‘normal canine behavior’ such as ‘barking and running around’ does not amount to vicious propensities" ( Brady v. Contangelo , 148 A.D.3d 1544, 1546, 50 N.Y.S.3d 690 [4th Dept. 2017], quoting Collier , 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; see Long , 162 A.D.3d at 1647, 78 N.Y.S.3d 588 ; Bloom v. Van Lenten , 106 A.D.3d 1319, 1321, 965 N.Y.S.2d 661 [3d Dept. 2013] ).
Contrary to defendant's initial contention, we agree with plaintiffs that, if they established as a matter of law that defendant knew that both dogs, or the dogs in concert, had vicious propensities that resulted in the daughter's injuries, then defendant's liability would not be dependent upon plaintiffs' identification of the particular dog that bit the daughter (see O'Brien v. Amman , 21 Misc.3d 1118[A], 2008 N.Y. Slip Op 52096[U], *2–3, 2008 WL 4657790 [Sup. Ct., Allegany County 2008] ; see generally Beck v. Morse , 271 A.D.2d 916, 916–917, 706 N.Y.S.2d 755 [3d Dept. 2000] ). The implication of defendant's contention to the contrary is that a bite is necessary to establish a vicious propensity; however, it is well established that "[a] vicious propensity is not limited to a bite or other attack, but ‘includes a propensity to act in a manner that may endanger the safety of another, whether playful or not’ " ( Marquardt , 288 A.D.2d at 928, 732 N.Y.S.2d 801 ). Here, it is undisputed that both of defendant's dogs were involved in an interaction on the couch upon which the daughter was sitting and, during that ultimately dangerous interaction of fighting or aggressive playing, the dogs caused the daughter's injuries when at least one of them bit her (see generally PJI 2:220 ).
The question thus becomes whether plaintiffs met their burden of establishing as a matter of law that the dogs had vicious propensities that resulted in the daughter's injuries and that defendant knew or should have known of those vicious propensities (see Collier , 1 N.Y.3d at 446–447, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Ioveno , 139 A.D.3d at 1012, 32 N.Y.S.3d 297 ; Smith v. Farner , 229 A.D.2d 1017, 1017–1018, 645 N.Y.S.2d 355 [4th Dept. 1996] ; see also PJI 2:220 ). We agree with defendant for the reasons that follow that plaintiffs failed to establish as a matter of law that the dogs had vicious propensities that resulted in the daughter's injuries.
Inasmuch as "summary judgment is the procedural equivalent of a trial ... [, t]he moving party must sufficiently demonstrate entitlement to judgment, as a matter of law, by tender of evidentiary proof in admissible form" ( LaGrega v. Farrell Lines , 156 A.D.2d 205, 205, 548 N.Y.S.2d 464 [1st Dept. 1989] ; see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Here, plaintiffs attempted to meet their burden by referencing a purported incident that occurred prior to the subject interaction involving the daughter in which a young boy was "nipped" by one of the dogs during an interaction with them. Plaintiffs failed, however, to submit evidence in admissible form regarding the purported prior incident allegedly establishing the existence of the dogs' vicious propensities. Instead, plaintiffs relied on defendant's inadmissible hearsay testimony during her deposition about what she had heard from others regarding the purported prior incident, for which she was not present and about which she had no firsthand knowledge (see generally Ciliotta v. Ranieri , 149 A.D.3d 1032, 1033, 52 N.Y.S.3d 474 [2d Dept. 2017] ). Such evidence is insufficient to meet plaintiffs' burden on their motion for summary judgment (see Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
It is true that, "[i]f a party makes an admission, it is receivable even though knowledge of the fact was derived wholly from hearsay" (Jerome Prince, Richardson on Evidence § 8–206 [Farrell 11th ed 1995], citing Reed v. McCord , 160 N.Y. 330, 54 N.E. 737 [1899] ). If, however, the party merely admits that he or she heard that an event occurred in the manner stated, the party's statement is "inadmissible as then it would only ... amount[ ] to an admission that he [or she] had heard the statement which he [or she] repeated and not to an admission of the facts included in it" ( Reed , 160 N.Y. at 341, 54 N.E. 737 ; see Cox v. State of New York 3 N.Y.2d 693, 698, 171 N.Y.S.2d 818, 148 N.E.2d 879 [1958] ). Here, defendant merely admitted that she had heard that the purported prior incident occurred in the manner stated by others, which is "in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement. Such evidence is clearly inadmissible" ( Reed , 160 N.Y. at 341, 54 N.E. 737 ; see Cox , 3 N.Y.2d at 698, 171 N.Y.S.2d 818, 148 N.E.2d 879 ; Matter of Aaron v. Burnham & Co. , 2 A.D.2d 93, 95, 154 N.Y.S.2d 652 [3d Dept. 1956] ).
Plaintiffs' remaining submissions likewise constituted inadmissible hearsay and, even assuming, arguendo, that those submissions constituted competent evidence, we conclude that they failed to establish as a matter of law that the dogs had vicious propensities that resulted in the daughter's injuries (see generally Collier , 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Earl v. Piowaty , 42 A.D.3d 865, 866, 839 N.Y.S.2d 861 [3d Dept. 2007] ).
Based on the foregoing, plaintiffs' failure to make the required prima facie showing of entitlement to judgment as a matter of law mandates the denial of their motion regardless of the sufficiency of defendant's opposing papers (see generally Winegrad , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).