From Casetext: Smarter Legal Research

Debellas v. Verrill

Appellate Division of the Supreme Court of New York, Second Department
Jul 22, 2008
53 A.D.3d 593 (N.Y. App. Div. 2008)

Opinion

No. 2007-01019.

July 22, 2008.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered December 11, 2006, which, upon so much of an order of the same court dated October 2, 2006, as granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint, dismissed the complaint.

David R. Lewis (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for appellant.

John P. Humphreys, Melville, N.Y. (Scott W. Driver of counsel), for respondent Ralph Verrill. Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for respondent Nikki Verdecchia.

Before: Spolzino, J.P., Santucci, Angiolillo and Dickerson, JJ.


Ordered that the judgment is affirmed, with one bill of costs.

The plaintiff allegedly fell to the ground and sustained injuries to her leg and foot when two dogs, owned separately by the defendants, collided with her while running with each other at an off-leash area of Coindre Hall Park in the Town of Huntington. "[T]he 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" ( Collier v Zambito, 1 NY3d 444, 446). "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'" ( id., quoting Dickson v McCoy, 39 NY 400, 403 [1868]). On their motions for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law with respect to the cause of action sounding in strict liability by demonstrating that their dogs had never collided with people on any prior occasion ( see Rodrigues v Norte, 40 AD3d 1068; Cameron v Harari, 19 AD3d 631). In opposition, the plaintiff failed to raise a triable issue of fact. Further, the plaintiff may not recover on her common-law negligence cause of action ( see Bard v Jahnke, 6 NY3d 592, 599; Sherman v Torres, 35 AD3d 436; Claps v Animal Haven, Inc., 34 AD3d 715, 716). Accordingly, the Supreme Court properly dismissed the complaint.


Summaries of

Debellas v. Verrill

Appellate Division of the Supreme Court of New York, Second Department
Jul 22, 2008
53 A.D.3d 593 (N.Y. App. Div. 2008)
Case details for

Debellas v. Verrill

Case Details

Full title:SUSAN DEBELLAS, Appellant, v. RALPH VERRILL et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 22, 2008

Citations

53 A.D.3d 593 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 6356
861 N.Y.S.2d 787

Citing Cases

Lauder v. Vealey

In contrast, "normal canine behavior" such as "running around" is not evidence of vicious propensities. See,…

Gammon v. Curley

The defendants did not restrain the dog to keep it away from guests in their home. Accordingly, the…