Opinion
No. 2023-00550 Index No. 3303/20
04-10-2024
Nicole Agro, appellant, v. Carol Olivieri, etc., respondent.
Schonberg Law Offices of the Hudson Valley, P.C., Central Valley, NY (Ryan Fagen and Susan R. Nudelman of counsel), for appellant. Correia, Conway & Stiefeld, White Plains, NY (Nicole E. Duke of counsel), for respondent.
Schonberg Law Offices of the Hudson Valley, P.C., Central Valley, NY (Ryan Fagen and Susan R. Nudelman of counsel), for appellant.
Correia, Conway & Stiefeld, White Plains, NY (Nicole E. Duke of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (James L. Hyer, J.), dated December 7, 2022. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
In July 2016, the plaintiff allegedly was injured when she was bitten by a dog owned by the adult son of the defendant's decedent (hereinafter the decedent) while the plaintiff was visiting the decedent's home. The decedent subsequently died. The plaintiff thereafter commenced this action against the defendant as the administrator of the decedent's estate. The defendant moved for summary judgment dismissing the complaint. By order dated December 7, 2022, the Supreme Court granted the defendant's motion. The plaintiff appeals.
"The sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability. To recover in strict liability in tort for damages caused by a dog bite or attack against a property owner, the plaintiff must demonstrate that the owner: (1) had notice that a dog was being harbored on the premises, (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the property owner to remove or confine the dog" (Kennedy v Brooklyn Hospitality, LLC, 217 A.D.3d 931, 932 [citation, alterations, and internal quotation marks omitted]; see Matthew H. v County of Nassau, 131 A.D.3d 135, 144-145). "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. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" (Cantore v Costantine, 221 A.D.3d 56, 61 [internal quotation marks omitted]; see King v Hoffman, 178 A.D.3d 906, 908). "Knowledge of an animal's vicious propensities may also be discerned," for example, "from the nature and result of the attack" (Matthew H. v County of Nassau, 131 A.D.3d at 148) or "[t]he keeping of a dog as a guard dog" (Collier v Zambito, 1 N.Y.3d 444, 447). In contrast, "[k]nowledge of normal canine behavior, such as running around, pulling on a leash and barking at another dog or passersby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities" (Brooks v Adell, 211 A.D.3d 792, 793 [internal quotation marks omitted]).
Here, the defendant established, prima facie, that the decedent was not aware, nor should he have been aware, that his son's dog had any vicious propensities (see Kennedy v Brooklyn Hospitality, LLC, 217 A.D.3d at 932; Drakes v Bakshi, 175 A.D.3d 465, 466). Moreover, contrary to the plaintiff's contention, the defendant did not waive her argument that the decedent lacked notice, actual or constructive, of the dog's alleged vicious propensities by failing to assert lack of notice as an affirmative defense in her answer. Since notice was an essential element of the plaintiff's cause of action (see Kennedy v Brooklyn Hospitality, LLC, 217 A.D.3d at 932), the defendant, who denied the plaintiff's allegations of notice in her answer, was not required to plead lack of notice as an affirmative defense (see U.S. Bank N.A. v Saff, 191 A.D.3d 733, 734-735; Gulati v Gulati, 60 A.D.3d 810, 811-812; Smith v Peterson Trust, 254 A.D.2d 479, 479).
In opposition, the plaintiff failed to raise a triable issue of fact (see Brooks v Adell, 211 A.D.3d at 793-794; Elardi v Morales, 192 A.D.3d 1074, 1075). Contrary to the plaintiff's assertion, the decedent's son's deposition testimony that the dog "d[id] his job" to "protect[ ]" the home by "bark[ing] when someone knocked on the door" was insufficient to establish that the dog served as a guard dog. Instead, the decedent's son described "normal canine behavior" (Collier v Zambito, 1 N.Y.3d at 447; see Brooks v Adell, 211 A.D.3d at 793). Moreover, the mere fact that the dog had a "bad ear" and did not "like" when people pet him near his ears, which he expressed by "pull[ing] away" when someone pet him near his ears, without more, was insufficient to raise an issue of fact as to whether the dog had vicious propensities (see Zimmer v Maxwell, 219 A.D.3d 1565, 1566; cf. Zicari v Buckley, 213 A.D.3d 1343, 1344-1345). Further, the nature and severity of the attack does not demonstrate that the decedent knew or should have known of the dog's alleged vicious propensities (see Sattler v Passaro, 211 A.D.3d 983, 984; cf. I.A. v Mejia, 174 A.D.3d 770, 771-772; Matthew H. v County of Nassau, 131 A.D.3d at 148).
The plaintiff's remaining contention need not be reached in light of our determination.
DILLON, J.P., MILLER, WARHIT and VENTURA, JJ., concur.