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

543
CA 10-02006
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.


JOANN KRIEGER AND HERBERT KRIEGER,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

VICKY COGAR AND JEFF COGAR,
DEFENDANTS-RESPONDENTS.


O’BRIEN BOYD, P.C., WILLIAMSVILLE (STEPHEN BOYD OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered March 16, 2010 in a personal
injury action. The order, upon reargument, granted defendants’ cross
motion for summary judgment dismissing the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Joann Krieger (plaintiff) in an accident
involving defendants’ six-day-old colt. When Vicky Cogar (defendant)
attempted to place a halter on the colt, the animal backed into the
stall door and knocked plaintiff, who was standing outside of the
door, to the ground. We conclude that Supreme Court properly granted
defendants’ motion for leave to reargue their prior cross motion for
summary judgment dismissing the complaint and, upon reargument,
granted the cross motion.

     Agriculture and Markets Law § 108 (7) characterizes horses, which
include colts, as domestic animals, and it is well settled “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’ ” (Collier v Zambito, 1 NY3d 444, 446; see Bard v Jahnke, 6
NY3d 592, 596-597). In Collier (1 NY3d at 447), the Court of Appeals
held that “an 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
                                 -2-                           543
                                                         CA 10-02006

harm, can be found to have vicious propensities--albeit only when such
proclivity results in the injury giving rise to the lawsuit.” Once it
is established that the owner of the animal in question had knowledge
of its vicious propensity, the owner becomes strictly liable for any
resulting injuries (see Bard, 6 NY3d at 597). “The Court of Appeals
has explicitly ‘reject[ed] the notion that a negligence cause of
action survives Collier and Bard’ ” (Farnham v Meder, 72 AD3d 1574,
1575, quoting Petrone v Fernandez, 12 NY3d 546, 550), “and it has held
that the ‘owner’s liability is determined solely by application of the
rule articulated in Collier’ ” (id., quoting Bard, 6 NY3d at 599
[emphasis added]).

     Here, defendants brought the colt to their property no more than
two days before the incident, and they acknowledged that the colt had
exhibited “skittish” or nervous behavior. Defendant Jeff Cogar
testified at his deposition that skittish behavior was the common
response of a horse after being transported to a new location, and
defendant testified at her deposition that she was aware of the colt’s
tendencies to avoid human contact and seek the protection of his
mother. The colt’s repeated avoidance behavior, however, does not
constitute a “proclivity to act in a way that puts others at risk of
harm,” which is required for a finding of vicious propensity (Collier,
1 NY3d at 447). Further, there is no evidence in the record that the
colt’s avoidance behavior was “ ‘abnormal to its class,’ ” another
necessary characteristic of vicious behavior for the purpose of
establishing liability (Bard, 6 NY3d at 597 n 2; see Restatement
[Second] of Torts § 509 [1]). Indeed, plaintiffs’ expert witness
stated in his affidavit that a week-old colt would have a natural
inclination to exhibit avoidance behavior, e.g., the placement of a
halter on its face.




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