Modafferi v. DiMatteo

• Decision Date: 15 November 2019
• Docket Number: 1140,CA 19–00212
• Parties: Kate MODAFFERI, Plaintiff–Appellant, v. Tiffany A. DIMATTEO, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 1413
110 N.Y.S.3d 478

Kate MODAFFERI, Plaintiff–Appellant,
v.
Tiffany A. DIMATTEO, Defendant–Respondent.

1140
CA 19–00212

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

Entered: November 15, 2019

110 N.Y.S.3d 479

COTE & VAN DYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR PLAINTIFF–APPELLANT.

THE LAW OFFICES OF JOHN TROP, DEWITT (KEVIN M. MATHEWSON OF COUNSEL), FOR DEFENDANT–RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

177 A.D.3d 1413

Appeal from an order of the Supreme Court, Onondaga County (James P. Murphy, J.), entered August 27, 2018. The order granted the motion of defendant for summary judgment and dismissed the complaint.

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

Memorandum: Plaintiff was walking her leashed small breed dog by defendant's home when defendant's two dogs escaped from defendant's fenced backyard. One of defendant's dogs attacked plaintiff's dog and, as plaintiff attempted to separate the dogs, she was bitten by defendant's dog. Supreme Court

177 A.D.3d 1414

granted defendant's motion for summary judgment dismissing the complaint. We reverse.

110 N.Y.S.3d 480

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...