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

500
CA 10-02321
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


RUSSELL J. ROCKWOOD, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JAMES LABATE AND LOIS LABATE,
DEFENDANTS-APPELLANTS.


MITCHELL GORIS & STOKES, LLC, CAZENOVIA (MARK D. GORIS OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

HANCOCK & ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County
(Michael E. Daley, J.), entered May 20, 2010 in a personal injury
action. The order denied defendants’ motion for summary judgment.

     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 he sustained in a motorcycle accident when he attempted to
avoid hitting defendants’ dog, which had entered the road. Supreme
Court denied defendants’ motion seeking summary judgment dismissing
the complaint. That was error. It is well established that the
negligence of the owners of a domestic animal is not a basis for
liability for injuries caused by the animal (see Petrone v Fernandez,
12 NY3d 546, 550). Liability may be established only if the owners
knew or should have known that the animal had a vicious propensity
(see Collier v Zambito, 1 NY3d 444, 446), which includes a propensity
to interfere with traffic (see Myers v MacCrea, 61 AD3d 1385).

     It is undisputed that, on the date of the accident, defendant
Lois LaBate closed the gate on the six-foot chain link fence
surrounding defendants’ yard but failed to secure it and that the dog
pushed open the gate and ran down the 100-foot driveway and into the
road. In support of their motion, however, defendants established
that the dog had never been unrestrained outside of the confines of
their yard prior to that date. Further, defendants submitted
plaintiff’s deposition testimony that he lived one-quarter mile from
defendants’ house and that he passed defendants’ house at least twice
per day and had never seen the dog prior to the date of the accident.
We therefore conclude that defendants established their entitlement to
                                 -2-                          500
                                                        CA 10-02321

judgment as a matter of law (see generally Zuckerman v City of New
York, 49 NY2d 557, 562). We further conclude that plaintiff failed to
raise a triable issue of fact whether the dog had a propensity to
interfere with traffic based upon defendant’s testimony that the dog
ran inside the confines of the yard and went to the fence to “follow
noise.” “In view . . . of the absence of any evidence that the dog .
. . exhibited a . . . propensity [to interfere with traffic] prior to
the incident involving the . . . plaintiff, no triable issue was
raised” (Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224, 224, affd
10 NY3d 787; see Myers, 61 AD3d 1385; see generally Petrone, 12 NY3d
at 550). We therefore reverse the order, grant the motion and dismiss
the complaint.




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