Opinion
2013-12-5
Shawn BUICKO, Appellant, v. Ricardo D. NETO et al., Respondents.
Law Office of John Seebold, PLLC, Schenectady (John R. Seebold of counsel), for appellant. Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for respondents.
Law Office of John Seebold, PLLC, Schenectady (John R. Seebold of counsel), for appellant. Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for respondents.
Before: PETERS, P.J., STEIN, McCARTHY and SPAIN, JJ.
SPAIN, J.
Appeal from an order of the Supreme Court (Chauvin, J.), entered July 16, 2012 in Saratoga County, which, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.
When plaintiff rode her bicycle past defendants' residence, she noticed defendants' dog, Dudley, running back and forth along the front boundary of defendants' property and barking. After passing defendants' residence, plaintiff turned around at a cul-de-sac and again rode past defendants' residence. At this point, Dudley allegedly ran from the property into the road and in front of the bicycle, causing plaintiff to inadvertently strike him and fall from her bicycle, sustaining injuries.
Alleging both negligence and strict liability, plaintiff commenced this action. Thereafter, plaintiff moved for partial summary judgment on the issue of strict liability, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiff's motion and granted defendants' cross motion. On plaintiff's appeal, we affirm.
It is well settled that a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury ( see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009]; Bard v. Jahnke, 6 N.Y.3d 592, 597–599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006]; Morse v. Colombo, 31 A.D.3d 916, 917, 819 N.Y.S.2d 162 [2006]; cf. Doerr v. Goldsmith, 110 A.D.3d 453, 454–455, 978 N.Y.S.2d 1 [2013]; see also Hastings v. Sauve, 21 N.Y.3d 122, 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 [2013] ). The sole viable claim against the owner of a dog that causes injury is one for strict liability ( see Bard v. Jahnke, 6 N.Y.3d at 596–597, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463; Alia v. Fiorina, 39 A.D.3d 1068, 1069, 833 N.Y.S.2d 761 [2007] ). To establish strict liability, “ there must be evidence that the animal's owner had notice of its vicious propensities” (Alia v. Fiorina, 39 A.D.3d at 1069, 833 N.Y.S.2d 761; see Collier v. Zambito, 1 N.Y.3d 444, 446–447, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ). “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 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254, quoting Dickson v. McCoy, 39 N.Y. 400, 403 [1868] ). Indeed, “a dog's habit of chasing vehicles or otherwise interfering with traffic could be a ‘vicious propensity’ ” (Alia v. Fiorina, 39 A.D.3d at 1069, 833 N.Y.S.2d 761). Therefore, in a case such as this, in the absence of proof that Dudley has a history of chasing bicycles or vehicles or otherwise interfering with traffic, “there is no basis for the imposition of strict liability” (id. at 1069, 833 N.Y.S.2d 761; see e.g. Smith v. Reilly, 17 N.Y.3d 895, 896, 933 N.Y.S.2d 645, 957 N.E.2d 1149 [2011]; Berg v. Chawgo, 277 A.D.2d 620, 620, 714 N.Y.S.2d 838 [2000] ). Notably, evidence that a dog has a history of barking and running around is insufficient, by itself, to establish a vicious propensity, as such actions “ are consistent with normal canine behavior” (Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254).
In reviewing the award of summary judgment to defendants, we view the evidence in the light most favorable to plaintiff, the opponent of that motion ( see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ). Here, defendants established that, although they had previously observed Dudley running back and forth within the invisible fence barking at passing cars and bicycles, they never observed him leave the fenced in area to chase bicycles or cars or to interfere with traffic. This evidence was sufficient to shift the burden to plaintiff to raise a triable question of fact as to whether defendants knew or should have known that their dog had previously interfered with traffic or engaged in conduct giving rise to an inference of vicious propensities ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]; Alia v. Fiorina, 39 A.D.3d at 1069, 833 N.Y.S.2d 761). Plaintiff's evidence that Dudley would bark at passing traffic and run back and forth in defendants' yard is insufficient to raise a question of fact as to whether he had a propensity to run into the road or interfere with traffic ( see Smith v. Reilly, 17 N.Y.3d at 896, 933 N.Y.S.2d 645, 957 N.E.2d 1149; Collier v. Zambito, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254; Illian v. Butler, 66 A.D.3d 1312, 1314, 888 N.Y.S.2d 247 [2009] ). Finally, given our conclusion that plaintiff's claim is determined solely by application of principles of strict liability, any evidence that the defendants' invisible fence was improperly maintained is irrelevant.
ORDERED that the order is affirmed, with costs. PETERS, P.J., STEIN and McCARTHY, JJ., concur.