Panel Finds Dog Did Not Show Vicious Propensity

, New York Law Journal

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Dudley the dog's tendency to bark at passing traffic and run hither and thither in his own yard does not give rise to an inference of vicious propensities, an upstate appellate panel has held in tossing out a lawsuit brought by a woman whose encounter with the canine caused her to fall off her bike.

In Buicko v. Noto, 516669, the Appellate Division, Third Department, again stressed that under New York law the owner of a dog that causes an injury is not liable under an ordinary negligence standard, and that strict liability kicks in only upon evidence that the animal had vicious propensities. The court said that a dog's known propensity to chase bicycles or otherwise interfere with traffic can trigger strict liability.

But in this case, the court said, there was no evidence that Dudley was inclined to dart in front of passing bicycles.

"Plaintiff's evidence that Dudley would bark at passing traffic and run back and forth in defendant's yard is insufficient to raise a question of fact as to whether he had a propensity to run into the road or interfere with traffic," Justice Edward Spain (See Profile) wrote in an opinion shared by Presiding Justice Karen Peters (See Profile) and justices Leslie Stein (See Profile) and William McCarthy (See Profile).

John Seebold of Schenectady, for the plaintiff, and Paul Briggs of Pemberton & Briggs in Schenectady, for the defendant, argued the appeal on Oct. 11.

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