Lewis v. Lustan

• Decision Date: 30 April 2010
• Citation: 899 N.Y.S.2d 767,72 A.D.3d 1486
• Parties: Joan M. LEWIS, Plaintiff-Appellant, v. Frank LUSTAN and Carol Lustan, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 767

72 A.D.3d 1486

Joan M. LEWIS, Plaintiff-Appellant,

v.Frank LUSTAN and Carol Lustan, Defendants-Respondents.

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

April 30, 2010.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff-Appellant.

Goldberg Segalla LLP, Buffalo (Paul D. McCormick of Counsel), for Defendants-Respondents.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries that she sustained while walking her dog by defendants' residence. Defendants' unleashed dog emerged from behind a car, barking. The dog ran toward plaintiff, startling her, whereupon she lost her balance and fell. We agree with plaintiff that Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint. Defendants' own submissions in support of the motion raise a triable issue of fact whether defendants' dog had vicious propensities and, if so, whether defendants knew or should have known of those propensities ( see generally Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). "[A]n 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-albeitonly when such proclivity results in the injury giving rise to the lawsuit" ( id. at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254). "A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant[s] liable for damages resulting from such an act" ( Anderson v. Carduner, 279 A.D.2d 369, 369-370, 720 N.Y.S.2d 18 [internal quotation marks omitted]; see Pollard v. United Parcel Serv., 302 A.D.2d 884, 754 N.Y.S.2d 473). Here, we conclude that the deposition testimony of defendants that their barking dog rushed toward cars and people on numerous occasions prior to the incident with plaintiff raises a triable issue of fact to defeat the motion ( see Pollard, 302 A.D.2d at 884-885, 754 N.Y.S.2d 473).

It is hereby ORDERED that the order so appealed from is reversed on the law without costs, the motion is denied and the complaint is reinstated.

All concur except SMITH, J.P., and PINE, J., who dissent and vote to affirm in the following Memorandum:

We respectfully dissent and would affirm the order granting defendants' motion for summary judgment dismissing the complaint. In our view, there is no basis for imposing liability upon defendants under the circumstances of this case. The majority correctly sets forth the well-settled principle that "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 v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463). "[W]hen harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier " ( Petrone...