Cite as: Bashang v. Pisano, 19175/10, NYLJ 1202586643946, at *1 (Sup., NA, Decided January 15, 2013)

Justice F. Dona Winslow

Decided: January 15, 2013

ATTORNEYS

Plaintiff's Attorney: Alan M. Sanders, LLC

Defendant's Attorney: Devitt & Spellman, Esq.

The following papers read on this motion (numbered 1-3):

Notice of Motion 1

Affirmation in Opposition 2

Reply Affirmation 3

 

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Defendant moves pursuant to CPLR §3212 for summary judgment dismissing the action in its entirety.

This is action to recover damages for personal injuries sustained when defendant's dog, a black Labrador retriever, allegedly jumped up on plaintiff's back and caused him to fall. [See Verified Complaint (the "Complaint"), Def. Exh. A] The subject incident occurred on February 21, 2010, outside of defendant's home. Plaintiff, a limousine driver, had driven defendant, non-party witness Jeremy Skyrme ("Skyrme") and their wives to a fundraising event that evening, and was in the process of dropping off defendant and his wife at their home.

Plaintiff gives the following account: Upon arriving at defendant's home, plaintiff assisted defendant and his wife in getting packages out of the trunk, and then assisted defendant's wife inside the house. Plaintiff walked back down the driveway toward the car, which was parked in the street. He heard a dog barking. The barking stopped and started again, not any louder than when he first heard it. Seconds later, as he was walking downhill on the driveway, about four feet from the street, he felt a heavy pushing sensation from behind and something coming down upon his shoulder. He fell forward to the ground and landed in the street next to his car. After he fell, he observed defendant taking the dog back up to the house. Plaintiff did not hear the dog growling at any point

 

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prior to the incident, and the dog did not bite plaintiff. Plaintiff did not speak to defendant about the dog or the incident that evening. [Tr. EBT Bashang, Def. Exh. C].

Skyrme testified that he was sitting in plaintiff's vehicle at the time of the incident. He observed the dog coming out of the house when defendant's wife opened the door. Skyrme then heard a noise near the rear driver's side of the car. He testified that at the time he heard the noise, the dog was at the bottom of the property, at least 10 to 12 meters away from plaintiff. He did not witness the plaintiff's fall, or know how he was caused to fall. he did not see the dog come into contact with plaintiff. He did not hear the dog barking or witness any growling at any point prior to the incident. [Tr. EBT Skyrme. Def. Exh. E]

Defendant testified that the dog came out of the house and was barking, but that the dog came only half the distance from the house to the street, and stayed about 40-50 feet from plaintiff's vehicle. Defendant did not witness plaintiff's fall. He first learned of the incident when he saw plaintiff seated on the ground with his back leaning against the vehicle. [Tr. EBT Pisano. Def. Exh. D]

Plaintiff commenced the instant action on October 8, 2010, and issue was joined on October 27, 2010. The Complaint alleges that defendant knew or should have known that the dog "was vicious and had a ferocious nature." [Complaint, ¶4] The Complaint also alleges negligence, which, as amplified in the Bill of Particulars, includes the failure to warn the plaintiff, the failure to properly restrain or confine the dog, and the failure to properly control the dog. [Def. Exh. B]. Defendant now moves to dismiss the Complaint in its entirety, based upon the lack of an evidentiary basis to impose liability.

The Court notes, at the outset, that New York does not recognize a common law negligence cause of action for injuries caused by a domestic animal. When harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated by the Court of Appeals in Collier v. Zambito, [1 NY3d 444]-this is, the rule of strict liability for an owner who knows or should have known of the animal's vicious propensities. Petrone v. Fernandez, 12 NY3d 546; 550; Bard v. Jahnke, 6 NY3d 592, 599; Curbelo v. Walker, 81 AD3d 772; Egan v. Hom. 74 AD3d 1133.

To recover in strict liability for injuries caused by a dog, a plaintiff must establish (i) that the dog had vicious propensities; and (ii) that the owner knew or should have known of the dog's vicious propensities. Curbelo, 81 AD3d at 773. See Collier, 1 NY3d at 446. Vicious propensities may be established by proof of prior acts of a similar kind. In addition, "an animal that behaves in a manner that would not necessarily be

 

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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." Id., at 447. See also Dickinson v. Uschold, 11 AD3d 1036. A dog's known tendency to "rise up" to "greet" people, even in playfulness, has been held sufficient to sustain liability for injuries caused by such behavior. See Anderson v. Carduner, 279 AD2d 369.

In support of his motion for summary judgment, defendant refers to the deposition testimony of Skyrme, a frequent visitor at defendant's home. Skyrme testified that defendant's dog was old and slow, that he never saw any menacing or aggressive behavior on the part of defendant's dog, and that there was never any problem with the dog's interaction with his children. "My son is actually scared of dogs, and Bear is the type of dog that will just lie there and get beat around, finger-poked in the eye. It was a quiet dog. There never was any issue. If there was, I would never take my children there. It's as simple as that." [Tr. EBT Skyrme, Def. Exh. E, 10/19-24]

In opposition, Plaintiff attempts to show that the dog had a tendency to jump up in greeting, and that this tendency created a risk of harm for which the defendant should be held strictly liable. Plaintiff relies upon Skyrme's testimony:

Q: Did you ever see the dog jump up on anybody?

A: Yes. Yeah, I have actually — not typically. If it was a young dog, as I said the dog is quite old. Yeah, I have seen the dog. Even myself, he jumped up to my waist for sure, but not frequently. When you first walk through the door, but It's not the same sort of power you would expect in a younger dog. Yes, I have seen him jump.

Q: When you use the term "jump", describe what you mean.

A: Sort of greeting. He really didn't do it to the children. I'm a bit more — in the greeting, when I saw the dog, encourage him to come over and say hello. He is an old dog. He probably jumped up to my waist on occasion.

Q: You are talking about basically the dog putting his front paws on you?

A: Yeah.

[Tr. EBT Skyrme, Def. Exh. E, 12/1-19]

 

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The Court notes that the threshold issue — whether or not the dog caused plaintiff's fall — is far from determined. Nonetheless, the Court assumes, as it must on a motion for summary judgment, that the incident occurred in the manner depicted by plaintiff — that the dog jumped up on plaintiff from behind, and caused him to fall. Thus, the court turns to the question of vicious propensities."

The Court finds that defendant has made a prima facie showing of a lack of vicious propensities on the part of his dog. The Court finds further that plaintiff has failed to raise an issue of fact regarding the dog's known proclivity for behavior that poses a risk of harm. The fact that the dog would, on occasion, raise up and put his paws on Skyrme in an effort to interact with him is not sufficient to demonstrate a proclivity for potentially harmful behavior. See Dickinson, 11 AD3d at 1036. The distinguishing factor in this case is Skyrme's testimony that the dog rose up to greet Skyrme, not spontaneously, but in response to Skyrme's encouragement. There is no evidence that the dog had a general propensity for "enthusiastic jumping up on visitors." Compare Anderson, 279 AD2d at 369.

The Court has considered the remaining contentions of the parties and finds them to be without merit. Based upon the foregoing, it is

ORDERED, that defendant's motion pursuant to CPLR §3212 for summary judgment dismissing the Complaint in its entirety is granted.