Opinion
2011-08-4
Robert GORDON et al., Appellants,v.George DAVIDSON, as Administrator of the Estate of Peter A. Bliven, Deceased, Respondent.
Grasso, Rodriguez & Grasso, Schenectady (Nicholas J. Grasso of counsel), for appellants.Law Offices of Williamson, Clune & Stevens, Ithaca (Allan C. VanDeMark of counsel), for respondent.
Grasso, Rodriguez & Grasso, Schenectady (Nicholas J. Grasso of counsel), for appellants.Law Offices of Williamson, Clune & Stevens, Ithaca (Allan C. VanDeMark of counsel), for respondent.Before: MERCURE, J.P., PETERS, MALONE JR., KAVANAGH and STEIN, JJ.
MERCURE, J.P.
Appeal from an order of the Supreme Court (Giardino, J.), entered August 13, 2010 in Schenectady County, which granted defendant's motion for summary judgment dismissing the complaint.
In May 2005, plaintiff Robert Gordon (hereinafter plaintiff) was walking his dog past the home of Peter A. Bliven
when Bliven's two dogs, Sheeba and Storm, charged out from the driveway of the house. Before plaintiff was able to chase them away with a stick, Sheeba bit plaintiff's dog and knocked plaintiff to the ground. Plaintiff and his wife, derivatively, commenced this action seeking to recover damages for injuries plaintiff allegedly sustained due to the attack. Upon defendant's motion for summary judgment, Supreme Court dismissed the complaint, finding that defendant met his initial burden of establishing that Bliven had neither actual nor constructive knowledge that either of his dogs had vicious propensities, and that plaintiffs failed to raise an issue of fact. Plaintiffs now appeal, and we affirm.
Bliven, who was the original named defendant, died during the pendency of this action and was replaced by the administrator of his estate.
We reject plaintiffs' argument that the vicious propensity doctrine is misplaced in this case, and that they are entitled to recover under a common-law negligence theory based upon Bliven's failure to restrain his dogs. “The Court of Appeals has made clear that a cause of action for ordinary negligence does not lie against the owner of a domestic animal which causes injury. Rather, the sole viable claim is for strict liability,” which must be established by “evidence that the animal's owner had notice of its vicious propensities” ( Alia v. Fiorina, 39 A.D.3d 1068, 1069, 833 N.Y.S.2d 761 [2007] [internal citations omitted]; 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, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006]; Collier v. Zambito, 1 N.Y.3d 444, 446–448, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ). Accordingly, because a claim sounding in negligence does not lie and plaintiffs have not raised a question of fact regarding whether Bliven had actual or constructive knowledge of any vicious propensities on the part of his dogs, Supreme Court properly dismissed the complaint.
770 ORDERED that the order is affirmed, with costs.