Cicero v. O'Rourke

• Decision Date: 23 December 2022
• Docket Number: 688 CA 22-00399,No. 688 CA 22-00399
• Citation: Cicero v. O'Rourke, 2022 NY Slip Op 7316, No. 688 CA 22-00399 (N.Y. App. Div. Dec 23, 2022)
• Parties: LAURA CICERO, PLAINTIFF-APPELLANT, v. PATRICIA O'ROURKE AND VERONA STREET ANIMAL SOCIETY, DEFENDANTS-RESPONDENTS.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 07316

LAURA CICERO, PLAINTIFF-APPELLANT, v. PATRICIA O'ROURKE AND VERONA STREET ANIMAL SOCIETY, DEFENDANTS-RESPONDENTS.

No. 688 CA 22-00399

Supreme Court of New York, Fourth Department

December 23, 2022

WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANT-RESPONDENT PATRICIA O'ROURKE.

MOLOD SPITZ & DESANTIS, NEW YORK CITY (DAVID B. OWENS OF COUNSEL), FOR DEFENDANT-RESPONDENT VERONA STREET ANIMAL SOCIETY.

PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.

Appeal from an order of the Supreme Court, Monroe County (Elena F Cariola, J.), entered March 2, 2022. The order denied the motion of plaintiff for leave to amend the complaint.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum Plaintiff commenced this action seeking damages for injuries that she sustained after she was bitten by a dog owned by defendant Verona Street Animal Society (Verona Street). The incident took place at the residence of defendant Patricia O'Rourke, who was providing a foster home for the dog until Verona Street could find someone to adopt him. The complaint asserts strict liability causes of action against both defendants, alleging that they knew or should have known about the dog's vicious propensities (see generally Bard v Jahnke, 6 N.Y.3d 592, 596-597 [2006]; Collier v Zambito, 1 N.Y.3d 444, 446-447 [2004]).

While this case was pending, the Court of Appeals decided Hewitt v Palmer Veterinary Clinic, P.C. (35 N.Y.3d 541 [2020]), in which a woman was injured by a dog while she was in the waiting room of the defendant veterinary clinic. The Court held that the "vicious propensities notice requirement" (id. at 549), typically applicable in an action to recover for injury caused by a domestic animal, did not apply to the veterinary clinic inasmuch as that clinic's agents had "specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed" (id. at 548). Instead, the Court applied negligence principles, explaining that veterinarians or other agents of such a practice "may-either unavoidably in the course of treatment, or otherwise-create circumstances that give rise to a substantial risk of aggressive behavior" (id.). Due to their specialized knowledge, the Court concluded, "veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices-an environment over which they have substantial control, and which potentially may be designed to mitigate this risk" (id. at 549).

Relying on Hewitt, plaintiff moved for leave to amend her complaint to assert a negligence cause of action against O'Rourke, contending that the vicious propensities notice requirement is inapplicable because O'Rourke did not own the offending dog. In the alternative, plaintiff contended that the Hewitt exception to the vicious propensities notice requirement applied because O'Rourke had specialized knowledge of dogs and substantial control over her home, where the incident took place. Supreme Court denied the motion, and we now affirm.

" 'Although leave to amend a pleading should be freely granted absent prejudice or surprise..., leave to amend should be denied where... the proposed amendment is patently lacking in merit'" (Brown v Erie Ins. Co. 207 A.D.3d 1144, 1146 [4th Dept 2022]; see CPLR 3025 [b]; Dionisio v Geo. De Rue Contrs., Inc., 38 A.D.3d 1172, 1174 [4th Dept 2007]). Here, we conclude that the court did not abuse its discretion in denying plaintiff's motion for leave to amend the complaint inasmuch as the proposed negligence cause of action against O'Rourke patently lacks merit under existing caselaw (see generally Brown, 207 A.D.3d at 1146).

In Bard, the Court of Appeals held that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier" (6 N.Y.3d at 599 [emphasis added])-"i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities" (Petrone v Fernandez, 12 N.Y.3d 546, 550 [2009]; see Collier, 1 N.Y.3d at 446-447). Although O'Rourke does not own the dog that bit plaintiff, "[a]n owner's strict liability for damages arising from the vicious propensities and vicious acts of a dog 'extends to a person who harbors the animal although not its owner'" (Matthew H. v County of Nassau, 131 A.D.3d 135, 144 [2d Dept 2015], quoting Molloy v Starin, 191 NY 21, 28 [1908]; see Vikki-Lynn A. v Zewin, 198 A.D.3d 1342, 1342 [4th Dept 2021]; Cruz v Stachowski, 142 A.D.3d 1326, 1328 [4th Dept 2016]). The Bard rule also extends to dog sitters (see Russell v Hunt, 158 A.D.3d 1184, 1185 [...