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

308
CA 13-00042
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.


KATHLEEN A. SARGENT, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF ERIC J.
ENGASSER, DECEASED, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DONALD MAMMOSER, DEFENDANT-RESPONDENT.


PAUL WILLIAM BELTZ, P.C., BUFFALO (DEBRA A. NORTON OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

WALSH ROBERTS & GRACE, BUFFALO (JOSEPH H. EMMINGER, JR., OF COUNSEL),
FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Kevin M.
Dillon, J.), entered August 30, 2012. The order granted the motion of
defendant for summary judgment dismissing the complaint and denied the
cross motion of plaintiff to amend the complaint and for partial
summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying defendant’s motion and
reinstating the complaint, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this wrongful death action
individually and as administratrix of the estate of Eric J. Engasser
(decedent), seeking damages for fatal injuries sustained by decedent
in a motorcycle accident. The accident occurred when the motorcycle
operated by decedent collided with a cow on East Eden Road in the Town
of Eden. The cow had wandered onto East Eden Road from a farm that
was owned by defendant and located along the roadway. Plaintiff
alleged that defendant was negligent in failing to control, care for,
and supervise his cow. Defendant moved for summary judgment
dismissing the complaint, and plaintiff cross-moved to amend the
complaint to add a claim for strict liability based on vicious
propensities and for partial summary judgment on the issue of
liability. Supreme Court granted defendant’s motion and denied
plaintiff’s cross motion.

     We note at the outset that plaintiff does not contend on appeal
that the court erred in denying her cross motion, and thus she is
deemed to have abandoned any contention with respect thereto (see
Ciesinski v Town of Aurora, 202 AD2d 984, 984). We agree with
                                 -2-                           308
                                                         CA 13-00042

plaintiff, however, that the court erred in granting defendant’s
motion for summary judgment dismissing the complaint. We conclude
that the decision of the Court of Appeals in Hastings v Sauve (21 NY3d
122) compels the denial of defendant’s motion, and we therefore modify
the order accordingly.

     In Hastings (21 NY3d at 124), the plaintiff was injured when the
van she was driving hit a cow on a public road. The cow had been kept
on the property of one of the defendants, and there was evidence that
the fence separating that defendant’s property from the road was
overgrown and in bad repair (id.). The plaintiff and her husband
commenced a personal injury action against the property owner and the
owners of the animal (id. at 125). In reversing the order of the
Third Department, which had ruled that injuries inflicted by domestic
animals may proceed only under a strict liability theory based on the
owner’s knowledge of the animal’s vicious propensities, the Court of
Appeals held that the rule articulated in cases such as Petrone v
Fernandez (12 NY3d 546, 550), Bard v Jahnke (6 NY3d 592, 596-597), and
Collier v Zambito (1 NY3d 444, 446) “does not bar a suit for
negligence when a farm animal has been allowed to stray from the
property where it is kept” (Hastings, 21 NY3d at 124). The Court
reasoned that the claim in Hastings was “fundamentally distinct from
the claim made in Bard and similar cases: It is that a farm animal
was permitted to wander off the property where it was kept through the
negligence of the owner of the property and the owner of the animal”
(id. at 125). The Court further reasoned that to apply the rule in
Bard, i.e., that the owner’s liability is determined solely by the
vicious propensity rule, “would be to immunize defendants who take
little or no care to keep their livestock out of the roadway or off of
other people’s property” (id.). The Court therefore held that “a
landowner or the owner of an animal may be liable under ordinary
tort-law principles when a farm animal—i.e., a domestic animal as that
term is defined in Agriculture and Markets Law § 108 (7)—is
negligently allowed to stray from the property on which the animal is
kept” (id. at 125-126). That holding is applicable here to the
instant case.

     Defendant’s contention that he is entitled to summary judgment
dismissing plaintiff’s common-law negligence claim on the ground that
he lacked notice of the defect in the fence surrounding the paddock
where the cow was kept is not properly before us inasmuch as it is
raised for the first time on appeal (see Ciesinski, 202 AD2d at 985).
In any event, we conclude that there are triable issues of fact with
respect to defendant’s negligence based upon, inter alia, defendant’s
own testimony that there was a break in the fence on the night of the
accident and his acknowledgment that there had been previous breaks in
the fence that had to be repaired; the affidavits of defendant’s
neighbors, who averred that the escape of defendant’s cows was a
recurring problem; and the affidavit of plaintiff’s expert, who opined
that defendant’s fence was inadequate (see Hastings, 21 NY3d at 126).

Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
