Hickson v. Brown

• Decision Date: 02 March 2021
• Docket Number: Index No. E012019014025
• Citation: 2021 NY Slip Op 33350 (U)
• Parties: JULIE HICKSON, Plaintiff, v. FREDDA BROWN and LEAH BROWN-OLIVA, Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33350(U)

JULIE HICKSON, Plaintiff,
v.
FREDDA BROWN and LEAH BROWN-OLIVA, Defendants.

Index No. E012019014025

Supreme Court, Columbia County

March 2, 2021

Unpublished Opinion

Nicole P. Bini. Esq. Greenberg & Greenberg Attorneys for Plaintiffs

Kyle A. Satchell. Esq. Santacrose & Fran Attorneys for Defendants

DECISION AND ORDER

Andrew G. Ceresia, Judge

In the above-captioned personal injury action, defendants moved for summary judgment dismissing the complaint, and plaintiff opposed and cross-moved for summary judgment on the issue of liability. The Court will determine both motions herein.

1

The following facts are undisputed. On October 27. 2018. plaintiff was walking her dog. Juno, through a neighborhood in the town of Chatham. Columbia County, when she approached a residence located at 144 Hudson Avenue. The residence was owned by defendant Fredda Brown, who leased a portion of it to her daughter, defendant Leah Brown-Oliva. Brown-Oliva had just exited the residence with her own dog. Josie. who was secured by a retractable leash. As Brown-Oliva was closing the door behind her. Josie began running toward plaintiff and Juno. pulling the retractable leash out of Brown-Oliva's grasp. Josie and Juno quickly became engaged in a fight, as plaintiff and Brown-Oliva attempted to separate the dogs. During the struggle, the retractable leash that was still attached to Josie became wrapped around plaintiffs legs, and she fell to the ground. Eventually, the dogs were separated, and plaintiff and Juno walked away. However, plaintiff later went to an urgent care center, where she was found to have fractures in both of her hands.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Ferluckaj v Goldman Sachs & Co., 12 N.Y.3d 316. 320 [2009]: Smalls v AJI Industries. Inc., 10 N.Y.3d 733. 735 [2008]: Avotte v Gervasio, 81 N.Y.2d 1062 [1993]: Alvarez v Prospect Hosp., 68 N.Y.2d 320. 324 [1986]: Zuckerman v City of NY, 49 N.Y.2d 557. 562 [1980]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Smalls v AJI Industries. Inc.. supra, quoting Alvarez v Prospect Hosp., supra). Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to submit evidentiary proof in admissible form sufficient to establish the existence of

2

material issues of fact which require a trial of the action (see Zuckerman v City of NY, supra: Alvarez v Prospect Hosp., supra). The Court's function is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and determine whether there is any triable issue of fact outstanding {see Wells v 3M Corp., 137 A.D.3d 1556. 1559 [2016]: McKenna v Reale, 137A.D.3d 1533. 1534 [2016]).

In a case such as this, '"the Court of Appeals has made clear that a cause of action for ordinary negligence does not lie against the owner of a domestic animal which causes injury. Rather, the sole viable claim is for strict liability.* which must be established by evidence that the animal"s owner had notice of its vicious propensities'" (Filer v Adams, 106 A.D.3d 1417. 1419 [2013]. quoting Alia v Fiorina, 39 A.D.3d 1068. 1069 [2007]: see Petrone v Fernandez, 12 N.Y.3d 546. 550 [2009]: Collier v Zambito, 1 N.Y.3d 446, 446-47 [2004]). This principle applies even where it is not alleged that there was any direct animal attack or bite but. rather, it is alleged that the owner failed to restrain the animal (see Filer v Adams, supra: Petrone v...