Petrone v. Fernandez, No. 100

• Court: New York Court of Appeals
• Writing for the Court: Read
• Citation: 12 N.Y.3d 546,2009 NY Slip Op 4694,883 N.Y.S.2d 164,910 N.E.2d 993
• Decision Date: 09 June 2009
• Docket Number: No. 100
• Parties: Melanie PETRONE, Respondent, v. Bernard FERNANDEZ, Defendant, and James McCloy, Appellant.

910 N.E.2d 993 12 N.Y.3d 546 2009 NY Slip Op 4694 883 N.Y.S.2d 164 Melanie PETRONE, Respondent,
v.
Bernard FERNANDEZ, Defendant, and
James McCloy, Appellant. No. 100 Court of Appeals of New York. June 9, 2009.

Terence F. Gilheany, New York City, and Bailey & Sherman, P.C., Douglaston, for appellant.

[910 N.E.2d 994]

Law Offices of Michael A. Cervini, Jackson Heights (Michael A. Cervini and Robin Mary Heaney of counsel), for respondent.

[883 N.Y.S.2d 547]

OPINION OF THE COURT

READ, J.

On May 9, 2005, plaintiff Melanie Petrone, a mail carrier employed by the United States Postal Service, was making the rounds on a "drive-out" mail route in Douglaston, Queens. At about 11:30 A.M., she parked her Honda Accord along the side of a one-way roadway, directly across the street from the house where defendant James McCloy resided at the time. The house's front door is set back about 15 feet from the sidewalk, and the lawn slopes down toward the street. The lawn is unfenced. As plaintiff got out of her car, she observed at least two landscapers working on the house's lawn. After she had walked about six feet toward the house, plaintiff also saw a dog—defendant's then nine-year-old rottweiler—lying on the lawn, unleashed. She immediately "turned back to walk back to [her] vehicle,"

883 N.Y.S.2d 548

intending to skip the mail delivery because of the unrestrained dog, a postal procedure she called "flagging" a house.

According to plaintiff, when she was about four feet from her car, she "turned to see if the dog had moved and the dog had proceeded to run at [her] from the top of the hill"; and had come to within approximately six feet of her.^* She "ran" the short remaining distance to her car, and "tried to jump through" the open window on the driver's side "[l]egs first." As plaintiff describes what she did, she "grabbed" the car and flung her right leg through the open window, jamming her right middle finger on "[t]he outside of the doorframe where the window comes down" as she executed this maneuver. She ended up stuck in an awkward position—with her right leg inside the car and her left leg outside—and "screaming ... for someone to help." The dog was "Might next to [her]," but "did not do anything." Plaintiff does not recall whether the dog ever barked at her. In other words, the dog did not bite or threaten or apparently make any contact whatsoever with plaintiff.

Plaintiff's cries attracted the landscapers' attention and assistance. And defendant, who was near the house, "yelled for the dog to come back," and the dog obeyed. Defendant then approached plaintiff, and they had a conversation that "was just about panic and [defendant] had come over to say that the dog's okay, he doesn't do anything," and plaintiff was "just very scared at that point. Just letting [defendant] know how nervous [she] was at that point."

Plaintiff handed defendant his mail, and continued on her rounds. Soon, however, she "felt pain" in her right middle finger, which "began to bruise." She called her shop steward to tell him what had happened and he, in turn, informed her manager. The manager met and accompanied plaintiff to a nearby medical facility where her injured finger was X-rayed, and diagnosed as "possibl[y] fracture[d]." As a result of this diagnosis, plaintiff's right middle finger was splinted for about five weeks, and taped to the adjoining finger for an additional week or so; no medication was ever prescribed to her for the injury. Plaintiff missed about six weeks of work, but was paid her full salary during the absence. At the time of her deposition, 10 months after the incident, plaintiff complained that the

883 N.Y.S.2d 549

finger "still ache[d]," especially in the "colder weather,"

910 N.E.2d 995

and was "hard to bend ... still." In addition, she could not "really put any pressure on it," and had "a hard time opening bottles." Plaintiff also was required to "vary [her] work" when "do[ing] what's called, `finger[ing] the mail'" on account of the residual stiffness of her finger.

In September 2005, plaintiff sued defendant and the owner of the house for personal injuries as a result of her encounter with the dog. She alleged a first cause of action based on defendants' supposed knowledge of the dog's "prior history of vicious propensities"; and a second cause of action for negligence because of defendants' "violation of ... laws, statute[s], regulation[s], and ordinance[s]." The second cause of action was essentially premised on the local leash law, section 161.05(a) of the New York City Health Code (24 RCNY 161.05[a]), which provides that "a person who owns, possesses or controls a dog shall not permit it to be in a public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than six feet long" (emphasis added).

In May 2006, the owner of the house sought summary judgment dismissing the complaint. Citing our decision in Collier v. Zambito, 1 N.Y.3d 444, 2004 WL 303116, 807 N.E.2d 254 [2004], he observed that there was "no indication that either of the defendants had any knowledge of any type of vicious propensities," or "that the dog[ ] in question actually did anything vicious." He also pointed out that he did not own the dog and was not present when the complained-of events took place. Defendant supported his codefendant's motion, stating that although plaintiff "trie[d] to distinguish this case by claiming `common law negligence' ..., it is or should be clear that, just as in a `dog bite' case, a vicious propensity must be shown in an alleged `dog chase' case," and that "[n]o such showing has or can be made."

Supreme Court issued a decision, dated November 29, 2006, granting the...