Saddlemire v. Hunsdon

• Decision Date: 10 February 2022
• Docket Number: 532527
• Citation: 202 A.D.3d 1233,162 N.Y.S.3d 537
• Parties: Robert SADDLEMIRE et al., Plaintiffs, v. Simeon HUNSDON et al., Defendants and Third-Party Plaintiffs—Appellants; Gary Fisher et al., Third–Party Defendants—Respondents.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 1233

162 N.Y.S.3d 537

Robert SADDLEMIRE et al., Plaintiffs,

v. Simeon HUNSDON et al., Defendants and Third-Party Plaintiffs—Appellants;Gary Fisher et al., Third–Party Defendants—Respondents.

532527

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

Calendar Date: December 16, 2021

Decided and Entered: February 10, 2022

Brennan & White, LLP, Queensbury (William J. White of counsel), for defendants and third-party plaintiffs-appellants.

Gozigian, Washburn & Clinton, Cooperstown (E.W. Garo Gozigian of counsel), for Gary Fisher and another, third-party defendants-respondents.

Smith, Dominelli & Guetti, LLC, Albany (Paul J. Campito of counsel), for Consetta Sucese, third-party defendant-respondent.

Before: Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (Auffredou, J.), entered May 14, 2020 in Washington County, which, among other things, granted third-party defendants’ motions for summary judgment dismissing the third-party complaint.

On June 12, 2017, two horses, Car–Lins Two by Too (hereafter Car–Lins) and Determined Desire (hereafter Dee), were being boarded at a horse farm owned and operated by defendants. At approximately 10:00 p.m. that evening, a passerby found Car–Lins and Dee on or near Route 197 in the Town of Fort Edward, Washington County and notified defendants, who attempted to retrieve them. Before they could corral the horses, plaintiffs, who were riding on a motorcycle westbound on Route 197, collided with Dee. Plaintiffs commenced this negligence action against defendants, who, in turn, commenced a third-party action against third-party defendants Gary Fisher (hereinafter Fisher) and Mary Jane Fisher, the owners of Dee, and third-party defendant Consetta Sucese, the owner of Car–Lins.¹ Following joinder of issue, the Fishers and Sucese separately moved for summary judgment dismissing the third-party complaint. Defendants moved for summary judgment dismissing plaintiffs’ complaint and cross-moved for summary judgment on their third-party complaint. Supreme Court granted third-party defendants’ motions and dismissed the third-party complaint, and denied defendants’ motion and cross motion. Defendants appeal.²

"[A] landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal – i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108(7)³ – is negligently allowed to stray from the property on which the animal is kept" ( Hastings v. Sauve, 21 N.Y.3d 122, 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 [2013] ; see Thompson v. Brown, 167 A.D.3d 1310, 1311, 90 N.Y.S.3d 342 [2018] ). Moreover, "[a] prima facie case of negligence can be made against the owner of a [horse] wandering unattended on a road, which causes damages to a plaintiff's vehicle or person. That presumption is rebuttable upon proof that the animal's presence on the highway was not caused by the owner's negligence" ( Johnson v. Waugh, 244 A.D.2d 594, 596, 663 N.Y.S.2d 928 [1997] [internal quotation marks and citations omitted], lv denied 91 N.Y.2d 810, 671 N.Y.S.2d 714, 694 N.E.2d 883 [1998] ; see Young v. Wyman, 159 A.D.2d 792, 793, 551 N.Y.S.2d 1009 [1990] ). "In other words, ‘liability for damages caused by stray horses cannot be imposed unless the [owner's] conduct in some way contributes to the injury’ " ( Johnson v. Waugh, 244 A.D.2d at 596, 663 N.Y.S.2d 928, quoting Jones v. Chalaire, 85 Misc.2d 767, 768, 380 N.Y.S.2d 493 [1975] ; see Alioto v. Denisiuk, 23 Misc.2d 292, 293, 205 N.Y.S.2d 570 [1960] ).

Here, it is undisputed that third-party defendants had virtually unlimited access to the horses and surrounding fields, and unlimited discretion as to when to leave the horses in the stables or in the fenced in field. Both Fisher and Sucese testified that they were physically present at the horse farm on the day the accident occurred, and that the horses were in the fenced in field on that day. Fisher testified that he was at the farm from morning until mid-afternoon. Sucese said that she and her 14–year–old son were there from 5:00 p.m. to 6:00 p.m. During the time that Sucese was there, she watched as her son fed the horses. She testified that he accomplished this by climbing up on the fence, which she said was approximately 12 to 15 feet from the gate, and dumped the feed in a bucket. She avowed that neither she nor her son entered the field with the horses that day. She further testified that the gates to the field were closed. Importantly, defendants both testified that they inspected the property the morning immediately following the accident, and that the gates were all closed and the fence was intact. Moreover, the record reveals that neither Fisher nor Sucese was responsible for regular maintenance of the fence itself. Through the presentation of this evidence, third-party defendants successfully rebutted any presumption of negligence and demonstrated their entitlement to judgment as a matter of law.

In response, defendants argue that numerous issues of fact exist. However, other than asserting that these facts concern what occurred and who engaged in, or failed to engage in, reasonable conduct, they decline to be more specific (see Howard v. Cahill, 290 A.D.2d 712, 715, 736 N.Y.S.2d 470 [2002] ). Defendants’ claim – that there is no proof that they acted unreasonably – does not raise an issue of fact vis-a`-vis third-party defendants. Nor does defendants’ argument that third-party defendants’ retention of the care, custody and control of the horses raise an issue of fact absent any proof in the record that the horse owners’ conduct contributed to the injury (see Bloomer v. Shauger, 21 N.Y.3d 917, 918, 967 N.Y.S.2d 322, 989 N.E.2d 560 [2013] ). We disagree with defendants’ assertion that third-party defendants’ performance of various chores in exchange for rent – including occasionally helping repair the fence, or, in the case of Fisher, that he "regularly inspect[ed] ... the fence[ ]"⁴ – created a duty...