                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 20, 2014                    518573
________________________________

ROBERT CAREY,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

BURTON P. SCHWAB,
                    Respondent.
________________________________


Calendar Date:   October 9, 2014

Before:   Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                              __________


      The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills
of counsel), for appellant.

      Law Office of Theresa J. Puleo, Albany (Nora A. Murphy of
counsel), for respondent.

                              __________


Stein, J.P.

      Appeal from an order of the Supreme Court (Ferradino, J.),
entered November 18, 2013 in Saratoga County, which, among other
things, denied plaintiff's motion to serve a second amended
complaint.

      The facts underlying this action are more fully set forth
in a prior decision of this Court (108 AD3d 976 [2013]).
Briefly, on May 24, 2008, defendant and two others rode three
horses to a local tavern. While defendant – who was riding a
horse he owned named Whiskey – was inside the tavern, Whiskey and
another horse got loose from their restraints and took off. One
of defendant's companions went after the horses. Whiskey passed
plaintiff and another individual, both of whom assisted
defendant's companion in trying to corral the horses. Whiskey
                               -2-                518573

was eventually restrained by defendant's companion, who asked
plaintiff to hold the reins. Plaintiff alleges that, as he was
holding the reins, Whiskey head-butted him and stepped on him,
causing plaintiff to lose consciousness and suffer injuries.

      Plaintiff subsequently commenced this personal injury
action against defendant for the injuries he allegedly sustained
and proceeded on a theory of strict liability.1 Defendant
thereafter moved for summary judgment dismissing the complaint,
arguing that he did not have prior notice of a vicious/dangerous
propensity attributable to Whiskey. Upon the denial of that
motion by Supreme Court (Sise, J.), we affirmed, finding that
there were triable questions of fact (108 AD3d at 978). We also
determined that it was unnecessary to address plaintiff's
contention – first raised at oral argument – that the then-recent
decision of the Court of Appeals in Hastings v Sauve (21 NY3d
122, 125-126 [2013]) would permit plaintiff to assert a
negligence claim (108 AD3d at 977 n 2).

      Prior to trial, defendant sought to preclude plaintiff from
raising the question of defendant's negligence and plaintiff
moved to amend the complaint to add a negligence cause of action
premised upon the holding in Hastings. Supreme Court (Ferradino,
J.) denied plaintiff's motion, and this appeal ensued.

      We now modify. Initially, we note the well-settled
principle that determination of an application for leave to amend
a complaint "rests soundly within the discretion of Supreme
Court, although leave to amend should be freely granted so long
as plaintiffs establish a satisfactory excuse for their delay and
defendants will not be prejudiced by the late amendment," and
provided that the proposed amendment is not plainly without merit
(Scribani v Buchannon, 101 AD3d 1517, 1519 [2012]; see Vermont
Mut. Ins. Co. v Mowery Constr., Inc., 96 AD3d 1218, 1219 [2012]).
Here, Supreme Court denied the amendment because it concluded
that it was plainly lacking in merit and unduly prejudicial to
defendant. We disagree.


     1
        Although plaintiff's wife was originally a plaintiff, she
has since discontinued her claim.
                              -3-                518573

      We turn first to the question of whether the proposed
amendment is plainly without merit. For about the last decade,
the general rule enunciated by the Court of Appeals has been that
the owner of a domestic animal may only be held legally
responsible for injuries inflicted by such animal based upon a
theory of strict liability and that a negligence claim does not
lie (see Petrone v Fernandez, 12 NY3d 546, 550 [2009]; Bard v
Jahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444,
446 [2004]).2 However, in Hastings, the Court of Appeals further
clarified its rule and permitted the application of ordinary
principles of tort law in situations in which "a farm animal –
i.e., a domestic animal as that term is defined in Agriculture
and Markets Law § 108 (7) – is negligently allowed to stray from
the property on which the animal is kept" (Hastings v Sauve, 21
NY3d at 125-126; see Sargent v Mammoser, 117 AD3d 1533, 1534
[2014]). In that case, the plaintiff was injured when her
vehicle struck a cow that had wandered onto a public road as a
result of the defendants' negligent maintenance of a fence on the
property where the cow was kept. The Court of Appeals recognized
that to limit recovery to a claim of strict liability where an
injury was solely the result of the negligence of the owner of
the animal and/or of the property from which the animal strayed –
and not due to the animal's vicious/dangerous propensity – would
"immunize defendants who take little or no care to keep their
livestock out of the roadway or off of other people's property"
(Hastings v Sauve, 21 NY3d at 125).

      This case, unlike Hastings, embraces elements of both
strict liability and common-law negligence. Notably, in the
instant matter, after Whiskey broke loose from the tavern, the
horse was ultimately corralled by plaintiff and others. As
plaintiff was holding the reins, he and another individual were
petting Whiskey and trying to keep the horse calm when, after
about five minutes, Whiskey apparently became startled, head-
swatted plaintiff and took off again. Had this incident occurred
on defendant's property, there is no question that plaintiff's


    2
        Before that time, the rule was unclear, at best, and
varied among the four Departments (see Bard v Jahnke, 6 NY3d at
600 [Smith, J., dissenting]).
                              -4-                518573

claim would be limited to strict liability (see Bard v Jahnke, 6
NY3d at 593-594; see also Bloomer v Shauger, 21 NY3d 917, 918
[2013]). We are unpersuaded by plaintiff's argument that the
holding in Hastings permits recovery based on principles of
common-law negligence in every case in which injury is caused by
an unrestrained farm animal off the premises where it is kept,
regardless of whether the injury is a result of a vicious
propensity of the animal. However, for the reasons that follow,
we agree with plaintiff that he should be permitted to amend the
complaint to plead a claim for common-law negligence as an
alternative theory of liability.

      Defendant apparently disputes plaintiff's claim that
Whiskey's conduct constituted a vicious propensity – as opposed
to normal equine behavior – upon which strict liability can be
based. If defendant were successful in establishing the absence
of a vicious propensity, this would lead to the very outcome of
which the Court of Appeals disapproved in Hastings – defendant
would be immunized for Whiskey's behavior despite having been
allegedly negligent in allowing the horse to roam from where it
was being kept.3 Inasmuch as we cannot predict how a jury will
decide the question of whether Whiskey's actions constituted a
vicious propensity, we discern no reason why the two theories
could not be pleaded in the alternative. Thus, if Whiskey's
actions were determined to constitute a vicious propensity,
plaintiff would be limited to pursuing a claim based on strict
liability (see Bloomer v Shauger, 21 NY3d at 918). If, however,
a jury determined that Whiskey's conduct did not constitute a
vicious propensity, the jury could then decide whether defendant
is liable based upon his alleged negligence in allowing the horse




    3
        We reject defendant's argument that the holding in
Hastings is limited to instances in which a farm animal is
allowed to stray from the defendant's property and that it does
not apply to situations, such as here, in which the animal has
strayed from a location other than the defendant's property (cf.
Doerr v Goldsmith, 110 AD3d 453, 453 [2013]).
                                 -5-                   518573

to stray from where it was kept.4

      However, that does not end our inquiry, as we must also
determine whether defendant will be prejudiced if plaintiff is
permitted to amend the complaint. There is no question that
plaintiff had been proceeding on a theory of strict liability
throughout this litigation, despite the fact that the original
complaint alleged common-law negligence. Considering the timing
of the Hastings decision and of plaintiff's request to proceed on
a common-law negligence theory, we are unpersuaded that plaintiff
unduly delayed his request to amend his pleadings. However, we
agree with defendant that discovery was conducted based solely
upon plaintiff's claim of strict liability. Thus, defendant
would be unduly prejudiced by the amendment unless given the
opportunity to conduct further discovery relevant to the issue of
common-law negligence. On the other hand, we are unconvinced
that permitting such limited further discovery would result in
undue prejudice to defendant. Accordingly, plaintiff's motion to
amend the complaint should be granted and the matter remitted to
Supreme Court for further proceedings, including additional
discovery, if necessary (see generally Koch v Acker, Merrall &
Condit Co., 114 AD3d 596, 597 [2014]; cf. Bailey v Village of
Saranac Lake, Inc., 100 AD3d 1089, 1091 [2012], lv dismissed 20
NY3d 1053 [2013]).

         Garry, Rose, Lynch and Devine, JJ., concur.




     4
        Presumably, the jury would be instructed to reach the
issue of negligence only if it determined that Whiskey's behavior
was not a vicious propensity.
                              -6-                  518573

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied plaintiff's motion
to amend the complaint; motion partially granted by allowing
plaintiff to add a negligence claim to be pleaded in the
alternative, and matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision; and, as
so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
