Opinion
05-17-2017
XIN KAI LI, respondent, v. Gerald H. MILLER, et al., appellants.
James J. Toomey, New York, NY (Michael J. Kozoriz of counsel), for appellants. Napoli Shkolnik, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Stephanie A. Staal ], of counsel), for respondent.
James J. Toomey, New York, NY (Michael J. Kozoriz of counsel), for appellants.
Napoli Shkolnik, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Stephanie A. Staal ], of counsel), for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an 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.
ORDERED 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.
Aside from the limited exception set forth in (Hastings v. Sauve, 21 N.Y.3d 122, 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 ), regarding a farm animal that strays from the place where it is kept (see Carey v. Schwab, 122 A.D.3d 1142, 1143–1145, 997 N.Y.S.2d 180 ), 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, 905 N.Y.S.2d 624 ; see Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116, 14 N.Y.S.3d 726, 35 N.E.3d 796 ; Hastings v. Sauve, 21 N.Y.3d at 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 ; Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ; Bueno v. Seecharan, 136 A.D.3d 702, 24 N.Y.S.3d 203 ; Lew v. Stratigakis, 135 A.D.3d 832, 23 N.Y.S.3d 326 ). 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, 14 N.Y.S.3d 726, 35 N.E.3d 796 ; Hastings v. Sauve, 21 N.Y.3d at 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 ; Petrone v. Fernandez, 12 N.Y.3d at 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ; Roche v. Bryant, 81 A.D.3d 707, 708, 916 N.Y.S.2d 185 ).
Contrary 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, 898 N.Y.S.2d 482 ). "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, 874 N.Y.S.2d 222 ; see Petrone v. Fernandez, 12 N.Y.3d at 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ; Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Roche v. Bryant, 81 A.D.3d 707, 916 N.Y.S.2d 185 ; Ayres v. Martinez, 74 A.D.3d 1002, 902 N.Y.S.2d 668 ). 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, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Dickson v. McCoy, 39 N.Y. 400, 403 ; Gammon v. Curley, 147 A.D.3d 727, 46 N.Y.S.3d 183 ; Claps v. Animal Haven, Inc., 34 A.D.3d 715, 716, 825 N.Y.S.2d 125 ). "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, 899 N.Y.S.2d 300 ; see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463 ; Velez v. Andrejka, 126 A.D.3d 685, 686, 5 N.Y.S.3d 212 ).
Here, 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, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Ioveno v. Schwartz, 139 A.D.3d 1012, 1013, 32 N.Y.S.3d 297 ; Jackson v. Georgalos, 133 A.D.3d 719, 720, 19 N.Y.S.3d 339 ; Roche v. Bryant, 81 A.D.3d at 708, 916 N.Y.S.2d 185 ; Ayres v. Martinez, 74 A.D.3d at 1002, 902 N.Y.S.2d 668 ). 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.
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.