Buicko v. Neto

• Citation: 2013 N.Y. Slip Op. 08182,112 A.D.3d 1046,976 N.Y.S.2d 610
• Parties: Shawn BUICKO, Appellant, v. Ricardo D. NETO et al., Respondents.
• Decision Date: 05 December 2013
• Court: New York Supreme Court Appellate Division

112 A.D.3d 1046
976 N.Y.S.2d 610
2013 N.Y. Slip Op. 08182

Shawn BUICKO, Appellant,
v.
Ricardo D. NETO et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 5, 2013.

[976 N.Y.S.2d 611]

Law Office of John Seebold, PLLC, Schenectady (John R. Seebold of counsel), for appellant.

Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for respondents.

Before: PETERS, P.J., STEIN, McCARTHY and SPAIN, JJ.

SPAIN, J.

Appeal from an order of the Supreme Court (Chauvin, J.), entered July 16, 2012 in Saratoga County, which, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.

When plaintiff rode her bicycle past defendants' residence, she noticed defendants' dog, Dudley, running back and forth along the front boundary of defendants' property and barking. After passing defendants' residence, plaintiff turned around at a cul-de-sac and again rode past defendants' residence. At this point, Dudley allegedly ran from the property into the road and in front of the bicycle, causing plaintiff to inadvertently strike him and fall from her bicycle, sustaining injuries.

Alleging both negligence and strict liability, plaintiff commenced this action. Thereafter, plaintiff moved for partial summary judgment on the issue of strict liability, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiff's motion and granted defendants' cross motion. On plaintiff's appeal, we affirm.

It is well settled that a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury ( see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009]; Bard v. Jahnke, 6 N.Y.3d 592, 597–599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006]; Morse v. Colombo, 31 A.D.3d 916, 917, 819 N.Y.S.2d 162 [2006]; cf. Doerr v. Goldsmith, 110 A.D.3d 453, 454–455, 978 N.Y.S.2d 1 [2013]; see also Hastings v. Sauve, 21 N.Y.3d 122, 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 [2013] ). The sole viable claim against the owner of a dog that causes injury is one for strict liability ( see Bard v. Jahnke, 6 N.Y.3d at 596–597, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463; Alia v. Fiorina, 39 A.D.3d 1068, 1069, 833 N.Y.S.2d 761 [2007] ). To establish strict liability, “ there must be evidence that the animal's owner had notice of its vicious propensities” (Alia v. Fiorina, 39 A.D.3d at 1069, 833 N.Y.S.2d 761; see Collier v. Zambito, 1 N.Y.3d 444, 446–447, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ). “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’ ” (Collier v. Zambito, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254, quoting Dickson v. McCoy, 39 N.Y. 400, 403 [1868] ). Indeed, “a dog's habit of chasing vehicles or otherwise interfering...