        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

725
CA 16-00025
PRESENT: WHALEN, P.J., CARNI, LINDLEY, AND DEJOSEPH, JJ.


YESENIA CRUZ, INDIVIDUALLY, AND AS PARENT AND
NATURAL GUARDIAN OF ELIJAH B. CRUZ, AN INFANT,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL J. STACHOWSKI, AS GUARDIAN OF PROPERTY
OF TAQUILO CASTELLANOS, AN INFANT, TAQUILO
CASTELLANOS, AN INFANT, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (ARTHUR A. HERDZIK OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

CELLINO & BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered October 5, 2015. The order, insofar as appealed
from, denied the motion of defendants Michael J. Stachowski, as
guardian of the property of Taquilo Castellanos, an infant, and
Taquilo Castellanos, an infant, for summary judgment dismissing the
complaint against them.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the complaint against defendant Michael J. Stachowski, as
guardian of the property of Taquilo Castellanos, an infant, and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action, individually and on
behalf of her son, seeking damages for injuries that he sustained when
he was attacked by a dog at the residence shared by defendants Taquilo
Castellanos (Taquilo) and Rogelio Castellanos, Jr. (Rogelio). At the
time of the incident Taquilo was 17 years old, and the deed to the
residence was in the name of defendant Michael J. Stachowski, in his
capacity as guardian of the property of Taquilo.

     Supreme Court erred in denying the motion of Taquilo and
Stachowski (defendants) insofar as it sought summary judgment
dismissing the complaint against Stachowski. Defendants’ contention
that Stachowski is protected from liability by quasi-judicial immunity
is not properly before us because it is raised for the first time in
their reply brief (see Matter of Rossborough v Alatawneh, 129 AD3d
                                 -2-                           725
                                                         CA 16-00025

1537, 1538, lv dismissed in part and denied in part 26 NY3d 982).
Defendants established, however, that Stachowski was entitled to
judgment by submitting evidence that Stachowski “lacked actual or
constructive knowledge that the dog had any vicious propensities”
(Hargro v Ross, 134 AD3d 1461, 1462) and, in opposition to that part
of the motion, plaintiff failed to raise a triable issue of fact (see
Doerr v Goldsmith, 25 NY3d 1114, 1116). We therefore modify the order
accordingly.

     The court properly denied the motion, however, insofar as it
sought summary judgment dismissing the complaint against Taquilo. We
reject defendants’ contention that Taquilo is relieved of potential
liability for the child’s injuries based upon Taquilo’s age at the
time of the incident. “It is elementary in this State that an infant
may be held civilly liable for damages caused by his [or her] tortious
acts” (Taksen v Kramer, 239 App Div 756, 756; see generally Kern v
Ray, 283 AD2d 402, 402; Adolph E. v Lori M., 166 AD2d 906, 906-907),
and defendants cite no authority to support their contention that an
infant cannot be subject to strict liability for harm caused by an
animal. Nor is it dispositive that the dog was owned by Taquilo’s
father, Rogelio. “Strict liability can . . . be imposed against a
person other than the owner of an animal which causes injury if that
person harbors or keeps the animal with knowledge of its vicious
propensit[ies]” (Matthew H. v County of Nassau, 131 AD3d 135, 144).
Here, defendants’ own submissions raise issues of fact whether Taquilo
harbored the dog (see id. at 145), and whether he knew or should have
known of the dog’s vicious propensities (see Francis v Becker, 50 AD3d
1507, 1507-1508).

     Finally, the court also properly denied the motion insofar as it
sought to dismiss the claim for punitive damages against Taquilo.
“Viewing the evidence in the light most favorable to the nonmoving
party as we must . . . , we conclude that there are triable issues of
fact that preclude summary judgment” (Russo v YMCA of Greater Buffalo,
12 AD3d 1089, 1089, lv dismissed 5 NY3d 746). Indeed, defendants’
submissions include evidence that Taquilo was both aware of the dog’s
vicious propensities and cultivated and encouraged those propensities,
thus raising issues of fact whether he exhibited the type of
“ ‘heedlessness and . . . utter disregard’ for the ‘rights and safety
of others’ ” that would support an award of punitive damages (Sweeney
v McCormick, 159 AD2d 832, 834).




Entered:   September 30, 2016                  Frances E. Cafarell
                                               Clerk of the Court
