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

404
CA 10-02274
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ.


JOHN F. SMITH AND LISA SMITH,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MARIJANE REILLY, DEFENDANT-APPELLANT.


BOND, SCHOENECK & KING, PLLC, SYRACUSE (STEPHANIE M. CAMPBELL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

BRINDISI, MURAD, BRINDISI, PEARLMAN, JULIAN & PERTZ, LLP, UTICA
(STEPHANIE A. PALMER OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered July 6, 2010 in a personal injury
action. The order denied the motion of defendant for summary judgment
dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is affirmed
with costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by John F. Smith (plaintiff) when a dog owned by
defendant ran into the road and collided with plaintiff’s bicycle,
causing plaintiff to be propelled over the handlebars. Supreme Court
properly denied defendant’s motion seeking summary judgment dismissing
the complaint. “[T]he owner of a domestic animal who either knows or
should have known of that animal’s vicious propensities will be held
liable for the harm the animal causes as a result of those
propensities” (Collier v Zambito, 1 NY3d 444, 446). In support of the
motion, defendant submitted her own deposition testimony, in which she
testified that the dog had a propensity to “bolt” from her residence
and that she had observed the dog in and around the roadway on several
occasions. Defendant’s testimony “raise[s] an issue of fact whether
defendant had actual or constructive notice that the dog was either
vicious or likely to interfere with traffic” (Sinon v Anastasi, 244
AD2d 973; cf. Roberts v Joller, 39 AD3d 1224).

     Even assuming, arguendo, that defendant met her initial burden on
the motion, we conclude that plaintiffs raised a triable issue of fact
sufficient to defeat the motion (see generally Zuckerman v City of New
York, 49 NY2d 557, 562). In opposition to the motion, plaintiffs
submitted the affidavit of a witness who had observed the dog loose on
a few occasions and averred that the dog “barks and runs for the
                                 -2-                           404
                                                         CA 10-02274

roadway.” “[A]n animal that behaves in a manner that would not
necessarily be considered dangerous or ferocious, but nevertheless
reflects a proclivity to act in a way that puts others at risk of
harm, can be found to have vicious propensities--albeit only when such
proclivity results in the injury giving rise to the lawsuit” (Collier,
1 NY3d at 447). Thus, the evidence submitted by plaintiffs also
raises a triable issue of fact whether defendant had notice of the
dog’s proclivity to act in a way that created the risk of harm to
plaintiff that resulted in the accident.

      All concur except SCUDDER, P.J., and SMITH, J., who dissent and
vote to reverse in accordance with the following Memorandum: We
respectfully dissent inasmuch as we conclude that Supreme Court erred
in denying defendant’s motion seeking summary judgment dismissing the
complaint. It is well settled that the sole viable claim against the
owner of a domestic animal that causes injury is for strict liability
and, to establish such liability, there must be evidence that the
animal’s owner had notice of its vicious propensities. The Court of
Appeals has often “restated [its] long-standing rule ‘that the owner
of a domestic animal who either knows or should have known of that
animal’s vicious propensities will be held liable for the harm the
animal causes as a result of those propensities. Vicious propensities
include the propensity to do any act that might endanger the safety of
the persons and property of others in a given situation’ ” (Bard v
Jahnke, 6 NY3d 592, 596-597, quoting Collier v Zambito, 1 NY3d 444,
446 [internal quotation marks and citations omitted]; see Petrone v
Fernandez, 12 NY3d 546, 550). Consequently, “a plaintiff cannot
recover for injuries resulting from the presence of a dog in the
highway absent evidence that the defendant was aware of the animal’s
vicious propensities or of its habit of interfering with traffic”
(Staller v Westfall, 225 AD2d 885; see Sinon v Anastasi, 244 AD2d
973).

     Here, contrary to the majority’s conclusion, defendant
established in support of the motion that she had no knowledge of any
vicious propensities of the dog or its tendency to interfere with
traffic. We have frequently stated that defendants in this type of
case will meet “their initial burden by submitting evidence
establishing that they lacked actual or constructive knowledge that .
. . the . . . dog[] had a propensity to interfere with traffic on the
road” (Myers v MacCrea, 61 AD3d 1385, 1386). “Here, defendant[]
established that, although [her] dog had occasionally run into the
road . . . , [she] knew of no incidents when it had ever charged or
chased vehicles or impeded the flow of traffic. Nor had [she]
received any complaints that the dog had ever interfered with traffic
on the road in any way. [That] evidence was sufficient to shift to
plaintiff the burden of raising a question of fact [with respect] to
defendant[’s] knowledge that the dog had previously interfered with
traffic. However, plaintiff’s evidence that the dog was occasionally
allowed to run loose and would then sometimes go into the road is
insufficient to raise a question of fact on [that] issue” (Alia v
Fiorina, 39 AD3d 1068, 1069).

     Contrary to the contention of plaintiffs and the majority’s
                                 -3-                           404
                                                         CA 10-02274

conclusion, “[p]laintiffs failed to raise an issue of fact whether
defendant[] had actual or constructive notice of the dog’s propensity
to interfere with vehicular traffic” (Roberts v Joller, 39 AD3d 1224,
1225 [internal quotation marks omitted]). “Proof that a dog roamed
the neighborhood or occasionally ran into the road is insufficient [to
raise a triable issue of fact], although proof that the dog had a
habit of chasing vehicles or otherwise interfering with traffic could
constitute a vicious propensity” (Rigley v Utter, 53 AD3d 755, 756).
“At most, the evidence established that defendant[ was] aware that the
dog would run [to] the road from time to time. [We] conclude that, in
the absence of evidence that defendant[] knew or should have known
that [her] dog was vicious or had a propensity to interfere with
vehicular traffic, there is no factual basis for a finding of
negligence” (Nilsen v Johnson, 191 AD2d 930, 931). We therefore would
reverse the order, grant the motion and dismiss the complaint.




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
