Opinion
07-12673.
April 14, 2009.
REYNOLDS, CARONIA, GIANELLI, et al., Attorneys for Plaintiff, Hauppauge, New York.
RUSSELL S. SALERNO, ESQ., Attorneys for Defendant, White Plains, New York.
Upon the following papers numbered 1 to 15 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 — 9; Notice of Cross Motion and supporting papers___; Answering Affidavits and supporting papers10 — 13; Replying Affidavits and supporting papers14 — 15; Other___; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the defendant's motion for summary judgment dismissing the complaint is denied. This is a slip and fall action to recover damages for permanent and serious injuries allegedly sustained by the plaintiff on November 14, 2006. At the time of the incident, the plaintiff was standing at the end of the driveway located at 12 Avon Court in Dix Hills, New York. When he observed two dogs running down the steps of the premises located next door at 10 Avon Court he turned and ran slipping and falling. The defendant in this action owns the premises located at 10 Avon Court and the two dogs that were present on said premises. The complaint alleges that the defendant is liable for the plaintiff's injuries based on his negligence in, inter alia, allowing his two large and untethered dogs to charge at the plaintiff.
The defendant now moves for summary judgment dismissing the complaint on the grounds that he was not negligent and the dogs did not have vicious propensities of which he was, or should have been, on notice.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( see, Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923; Winegrad v New York Univ. Med. Center , 64 NY2d 851, 487 NYS2d 316; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 925). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( see, Alvarez v Prospect Hosp. , supra; Winegrad v New York Univ. Med. Center , supra ). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action ( see, Alvarez v Prospect Hosp. , supra; Zuckerman v City of New York , supra).
In support of his motion for summary judgment the defendant submitted, inter alia, the pleadings, the deposition testimony of the plaintiff, and his own deposition testimony.
At his deposition, plaintiff testified that at the time of the incident he was at 12 Avon Court to repair glass in an automobile located there. Standing at the end of the driveway twenty to thirty minutes after arrival he first observed the defendant's two dogs coming down the front steps of the premises located next door at 10 Avon Court. The dogs were barking and running towards him. The plaintiff could not estimate how far away the dogs were when he first observed them. He tried to escape and immediately turned and ran up the driveway to his work van. As he tried to get in the back doors of his van, he slid on wet leaves, hit his knee on the van's bumper, and fell down under the van. He did not know how close the dogs had gotten to him and they never came in contact with him. A few minutes after the incident, he observed someone come out of 10 Avon Court and take the dogs inside.
During his deposition, the defendant testified that he resided at 10 Avon Court in Dix Hills, New York, at the time of the incident and owned the two dogs in question, a Husky/Shephard Mix and a Rottweiler/Hound mix. He stated that they had never bared their teeth at anyone, growled, lunged, and/or jumped in an aggressive fashion. He admitted that the dogs sometimes chased after squirrels and sometimes barked if someone walked by. He also testified that he had never received any complaints with respect to aggressive behavior on the part of either dog. The defendant said that around six months prior to the incident he installed an "invisible fence" around his property. This fence enclosed an area 15 feet from the property lines within the defendant's property. A 10" by 8" sign was posted in the plant bed in front of the house noting the existence of the "invisible fence." He asserted that the fence prevented the dogs from going off the property because each dog wore a collar and when they approached the "invisible fence" the collar would beep and deliver an electric shock to them. The defendant was not aware of any incident, from the time the fence was installed, that either dog pierced the fence. In this regard, he testified that the dogs would stop prior to the fence line, would not go close to the fence line, and if they were running, often decelerated before the fence line.
To recover in tort for damages caused by a dog, a plaintiff must establish that the dog had dangerous vicious propensities, that the owner knew or should have known of the dog's propensities, and that the harm was caused as a result of those propensities ( see, Collier v Zambito , 1 NY3d 444, 775 NYS2d 205; Ortiz v Contreras , 53 AD3d 603, 862 NYS2d 548 [2d Dept 2008]; Jacobsen v Schwarz , 50 AD3d 964, 857 NYS2d 199 [2d Dept 2008]; Marek v Burmester , 37 AD3d 668, 830 NYS2d 340 [2d Dept 2007]). Knowledge may be established by proof of an animal's attacks of a similar kind of which the owner had notice, or by an animal's prior behavior that, while not necessarily considered dangerous or ferocious, nevertheless reflects a proclivity to place others at risk of harm ( see, Bard v Jahnke , 6 NY3d at 597 citing Collier v Zambito , 1 NY3d at 446, 447). "Factors to be considered in determining whether an owner has knowledge of a dog's vicious propensities include 1) evidence of a prior attack, 2) the dog's tendency to growl, snap, or bare its teeth, 3) the manner of the dog's restraint, 4) whether the animal is kept as a guard dog, and 5) a proclivity to act in a way that puts others at risk of harm" ( Petrone v Fernandez , supra; see, Collier v Zambito , supra). The evidence submitted here established that defendant was the owner of large dogs and that he unsuccessfully attempted to control their behavior by use of an electric fence ( see, Bard v Jahnke , 6 NY3d 592, 815 NYS2d 16; Collier v Zambito , supra; Galgano v Town of N. Hempstead , 41 AD3d 536, 840 NYS2d 794; see also, Williams v City of New York , 306 AD2d 203, 761 NYS2d 221; compare, Rigley v Utter , 53 AD3d 755, 862 NYS2d 147; Marek v Burmester , 37 AD3d 668, 830 NYS2d 340) — a triable issue of fact. Accordingly, the motion by the defendant for summary judgment dismissing the complaint is hereby denied.