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

173
CA 16-01147
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


CASSANDRA BLAKE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF WYOMING, DEFENDANT-APPELLANT.


WEBSTER SZANYI LLP, BUFFALO (RYAN G. SMITH OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SMITH, MINER, O’SHEA & SMITH, LLP, BUFFALO (CARRIE L. SMITH OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Wyoming County
(Michael F. Griffith, A.J.), entered April 18, 2016. The order denied
the motion of defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries that she sustained when she was bitten by a dog at the
Wyoming County Animal Shelter. Plaintiff was working as a volunteer
dog walker, and the dog had been surrendered to the shelter
approximately two weeks before the incident. Defendant, the County of
Wyoming (County), appeals from an order denying its motion for summary
judgment dismissing the complaint. We reverse.

     We agree with the County that Supreme Court erred in denying the
motion with respect to plaintiff’s cause of action based on strict
liability. We conclude that the County met its “initial burden by
establishing that [it] lacked actual or constructive knowledge that
the dog had any vicious propensities” (Hargro v Ross, 134 AD3d 1461,
1462; see Doerr v Goldsmith, 25 NY3d 1114, 1116; Collier v Zambito, 1
NY3d 444, 446) and that, in opposition, plaintiff failed to raise a
triable issue of fact (see Hargro, 134 AD3d at 1462). Contrary to
plaintiff’s contention, the fact that shelter personnel may have been
informed at the time of the dog’s surrender that the dog had
previously knocked over a child is insufficient to raise an issue of
fact as to the dog’s vicious propensities to bite. Although a
tendency to knock a person over may reflect “a proclivity to act in a
way that puts others at risk of harm” (Collier, 1 NY3d at 447),
plaintiff’s injuries were not caused by the dog’s knocking her over,
and the dog’s proclivity to do so, even if established, did not
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                                                         CA 16-01147

“result[] in the injury giving rise to the lawsuit” (id.; see Campo v
Holland, 32 AD3d 630, 631).

     Plaintiff correctly notes that the record contains evidence of
the dog’s vicious propensities, i.e., evidence that the dog may have
bitten an eight-year-old girl approximately four months before biting
plaintiff. We nevertheless reject plaintiff’s contention that the
County knew or should have known of the prior incident. After that
incident, Robert Jines, a County employee in the Wyoming County Health
Department, Environmental Division (Health Department), was tasked
with examining the dog to ensure that the victim did not require
rabies shots. We conclude that, under the circumstances of this case,
any knowledge of that incident obtained by Jines and the Health
Department should not be imputed to the County or the shelter (see
Caselli v City of New York, 105 AD2d 251, 255; see also Matter of
Schoen v City of New York, 86 AD3d 575, 575). “A municipality often
will have numerous employees assigned to separate and diverse agencies
or departments” (Caselli, 105 AD2d at 255), and the record
demonstrates that there is no overlap in the respective scopes of
authority of the Health Department and the shelter.

     We further conclude that the court erred in denying the County’s
motion with respect to plaintiff’s negligence cause of action.
“[C]ases involving injuries inflicted by domestic animals may only
proceed under strict liability based on the owner’s knowledge of the
animal’s vicious propensities, not on theories of common-law
negligence” (Lista v Newton, 41 AD3d 1280, 1282 [internal quotation
marks omitted]; see Doerr, 25 NY3d at 1116; Bard v Jahnke, 6 NY3d 592,
598-599).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
