Opinion
217 CA 22-01292
04-28-2023
Rebecca M. FLANDERS, Plaintiff-Appellant, v. Stephen F. GOODFELLOW and Michelle Goodfellow, Defendants-Respondents.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF-APPELLANT. SANTACROSE, FRARY, TOMKO, DIAZ-ORDAZ & WHITING, BUFFALO (MICHAEL P. SCHUG OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
SANTACROSE, FRARY, TOMKO, DIAZ-ORDAZ & WHITING, BUFFALO (MICHAEL P. SCHUG OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., LINDLEY, MONTOUR, OGDEN, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff was delivering a package to defendants when one of defendants’ dogs escaped from their house, jumped up, and bit plaintiff, injuring her shoulder. Plaintiff commenced this action to recover damages for her injuries, asserting causes of action for negligence and for strict liability. Plaintiff appeals from an order granting defendants’ motion for summary judgment dismissing the complaint. We affirm.
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 Modafferi v. DiMatteo , 177 A.D.3d 1413, 1414, 110 N.Y.S.3d 478 [4th Dept. 2019] ). 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 ). "Such behaviors can include the animal being territorial, aggressively barking when [their] area [is] invaded, attacking another animal, growling and biting at another dog and jumping on individuals" ( Grillo v. Williams , 71 A.D.3d 1480, 1481, 897 N.Y.S.2d 371 [4th Dept. 2010] [internal quotation marks omitted]). Here, defendants met their burden on the motion with respect to the strict liability cause of action by demonstrating that they neither knew nor had reason to know of the dog's allegedly vicious propensities (see Spinosa v. Beck , 77 A.D.3d 1426, 1426, 909 N.Y.S.2d 850 [4th Dept. 2010] ) and plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
Further, inasmuch as cases involving harm caused by a domestic animal "may proceed only under a theory of strict liability, [and] not on theories of common-law negligence" ( Vikki-Lynn A. v. Zewin , 198 A.D.3d 1342, 1343, 155 N.Y.S.3d 663 [4th Dept. 2021] ; see Russell v. Hunt , 158 A.D.3d 1184, 1185-1186, 70 N.Y.S.3d 279 [4th Dept. 2018] ), Supreme Court properly granted the motion with respect to the negligence cause of action.