Smith v. Reilly

• Decision Date: 29 April 2011
• Citation: 2011 N.Y. Slip Op. 03357,921 N.Y.S.2d 423,83 A.D.3d 1492
• Parties: John F. SMITH and Lisa Smith, Plaintiffs–Respondents,v.Marijane REILLY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1492

921 N.Y.S.2d 423

2011 N.Y. Slip Op. 03357

John F. SMITH and Lisa Smith, Plaintiffs–Respondents,

v.Marijane REILLY, Defendant–Appellant.

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

April 29, 2011.

Bond, Schoeneck & King, PLLC, Syracuse (Stephanie M. Campbell of Counsel), for Defendant–Appellant.Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, LLP, Utica (Stephanie A. Palmer of Counsel), for Plaintiffs–Respondents.PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.MEMORANDUM:

Plaintiffs commenced this action seeking damages for injuries sustained by John F. Smith (plaintiff) when a dog owned by defendant ran into the road and collided with plaintiff's bicycle, causing plaintiff to be propelled over the handlebars. Supreme Court properly denied defendant's motion seeking summary judgment dismissing the complaint. “[T]he 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). In support of the motion, defendant submitted her own deposition testimony, in which she testified that the dog had a propensity to “bolt” from her residence and that she had observed the dog in and around the roadway on several occasions. Defendant's testimony “raise[s] an issue of fact whether defendant had actual or constructive notice that the dog was either vicious or likely to interfere with traffic” ( Sinon v. Anastasi, 244 A.D.2d 973, 665 N.Y.S.2d 156; cf. Roberts v. Joller, 39 A.D.3d 1224, 834 N.Y.S.2d 778).

Even assuming, arguendo, that defendant met her initial burden on the motion, we conclude that plaintiffs raised a triable issue of fact sufficient to defeat the motion ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). In opposition to the motion, plaintiffs submitted the affidavit of a witness who had observed the dog loose on a few occasions and averred that the dog “barks and runs for the roadway.” “[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-albeit only when such proclivity results in the injury giving rise to the lawsuit” ( Collier, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254). Thus, the evidence submitted by plaintiffs also raises a triable issue of fact whether defendant had notice of the dog's proclivity to act in a way that created the risk of harm to plaintiff that resulted in the accident.

It is hereby ORDERED that the order so appealed from is affirmed with costs.

All concur except SCUDDER, P.J., and SMITH, J., who dissent and vote to reverse in accordance with the following Memorandum:

We respectfully dissent inasmuch as we conclude that Supreme Court erred in denying defendant's motion seeking summary judgment dismissing the complaint. It is well settled that the sole viable claim against the owner of a domestic animal that causes injury is for strict liability and, to establish such liability, there must be evidence that the animal's owner had notice of its vicious propensities. The Court of Appeals has often “restated [its] long-standing rule ‘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. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ ” ( Bard v. Jahnke, 6 N.Y.3d 592, 596–597, 815 N.Y.S.2d 16, 848 N.E.2d 463, quoting Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [internal quotation marks and citations omitted]; see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993). Consequently, “a plaintiff cannot recover for injuries resulting from the presence of a dog in the highway absent evidence that the...