                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   517817
________________________________

MONICA CLARK,
                    Appellant,
     v                                      MEMORANDUM AND ORDER

DANIEL HEAPS,
                    Respondent.
________________________________


Calendar Date:   September 11, 2014

Before:   Peters, P.J., Lahtinen, Stein, Garry and Devine, JJ.

                             __________


      Mainetti, Mainetti & O'Connor, PC, Kingston (Michael A.
Mainetti of counsel), for appellant.

      Law Office of Karen L. Lawrence, Dewitt (Theresa M. Zehe of
counsel), for respondent.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (Becker, J.),
entered July 8, 2013 in Delaware County, which granted
defendant's motion for summary judgment dismissing the complaint.

      Plaintiff was employed by defendant's housekeeper to clean
defendant's house and care for his animals – including a pit bull
named Heidi and two other dogs – when the housekeeper was
unavailable to do so. While working at defendant's home in
October 2011, plaintiff took the dogs outside to play and sat on
a hammock in the yard. Heidi jumped onto the hammock and almost
immediately jumped off it again, kicking the hammock out from
under plaintiff, who fell to the ground and sustained shoulder
injuries. Plaintiff commenced this action against defendant
alleging causes of action in negligence and strict liability.
                              -2-                517817

Following joinder of issue and discovery, defendant moved for
summary judgment. Supreme Court granted the motion and dismissed
the complaint. Plaintiff appeals.

      There is no cause of action in negligence as against the
owner of a dog who causes injury, but one may assert a claim in
strict liability against a dog owner for harm caused by the dog's
vicious propensities when the owner knew or should have known of
those propensities (see Petrone v Fernandez, 12 NY3d 546, 550
[2009]; Collier v Zambito, 1 NY3d 444, 446-447 [2004]; Filer v
Adams, 106 AD3d 1417, 1419 [2013]; compare Hastings v Sauve, 21
NY3d 122, 125-126 [2013]). A vicious propensity in this context
need not involve any ferocious or aggressive behavior, but has
instead been defined as "a proclivity to act in a way that puts
others at risk of harm, so long as such proclivity results in the
injury giving rise to the lawsuit" (Bloom v Van Lenten, 106 AD3d
1319, 1320 [2013] [internal quotation marks and citations
omitted]; see Collier v Zambito, 1 NY3d at 447; Hamlin v
Sullivan, 93 AD3d 1013, 1013-1014 [2012]). However, "normal
canine behavior" does not establish vicious propensities, and
"rambunctious behavior will show awareness of a vicious
propensity only if it is the very behavior that resulted in [a]
plaintiff's injury" (Earl v Piowaty, 42 AD3d 865, 866 [2007]
[internal quotation marks, brackets and citations omitted];
accord Campo v Holland, 32 AD3d 630, 631 [2006]).

      Here, plaintiff testified that she had worked at
defendant's home on several occasions before the day of the
accident, and that neither she nor the housekeeper had ever had a
problem with Heidi or defendant's other dogs. This was the first
time Heidi had ever jumped into the hammock in plaintiff's
presence, although she later learned that Heidi liked to do so.
Defendant testified that he had never known Heidi to be
aggressive toward a person, but that she had previously jumped
into the hammock when he was in it because "[s]he like[d] to be
with people," and that the housekeeper had also told him that
Heidi had done so when they were "having fun in the hammock."
Although the dog had previously jumped out of the hammock while
defendant was in it, this act had never before caused defendant,
or any other person, to fall from the hammock. This testimony
was sufficient to meet defendant's prima facie burden upon his
                              -3-                  517817

summary judgment motion, establishing that he did not know that
Heidi had a vicious propensity that resulted in plaintiff's
injury, thus shifting the burden to plaintiff to establish the
existence of a triable issue of fact (see Buicko v Neto, 112 AD3d
1046, 1047 [2013]; Alia v Fiorina, 39 AD3d 1068, 1069 [2007]).

      Viewing the evidence in the light most favorable to
plaintiff (see Vega v Restani Constr. Corp., 18 NY3d 499, 503
[2012]), she did not satisfy this burden. Plaintiff relied upon
defendant's testimony that his dogs, including Heidi, had once
been involved in an attack on another dog on his property, and
that he had been injured in the course of breaking up this fight.
However, this evidence is not relevant to the conduct at issue
here, and does not reveal a proclivity to behave in the manner
causing the injury – that is, knocking a person out of a hammock
(see Smith v Reilly, 17 NY3d 895, 896 [2011]; Hamlin v Sullivan,
93 AD3d at 1015; Alia v Fiorina, 39 AD3d at 1069-1070). As
plaintiff produced no other evidence that defendant had any
knowledge of the alleged vicious propensities that caused her
injury, Supreme Court properly granted defendant's motion for
summary judgment dismissing the complaint.

     Peters, P.J., Lahtinen, Stein and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
