Opinion
01-20-2016
Julian LEW, etc., et al., respondents, v. John STRATIGAKIS, et al., appellants.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for appellants. Slater, Sgarlato & Cappello, P.C., Staten Island, N.Y. (Thomas J. Cappello of counsel), for respondents.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for appellants.
Slater, Sgarlato & Cappello, P.C., Staten Island, N.Y. (Thomas J. Cappello of counsel), for respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, etc., the defendants appeal, (1) as limited by their brief, from so much of an order of the Supreme Court, Queens County (Gavrin, J.), entered November 3, 2014, as granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability, and (2) from an order of the same court, also entered November 3, 2014, which denied their motion to quash the plaintiffs' subpoenas dated March 14, 2014, and March 28, 2014, respectively.
ORDERED that the first order entered November 3, 2014, is affirmed insofar as appealed from; and it is further,
ORDERED that the appeal from the second order entered November 3, 2014, is dismissed as abandoned; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
On July 21, 2012, the infant plaintiff was attacked by a dog at premises located at 23–08 Sound Street in Astoria. At the time of the attack, the defendants owned the premises and the dog, whose name was Diva.
Aside from the limited exception set forth in Hastings v. Sauve, 21 N.Y.3d 122, 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 regarding a farm animal that strays from the place where it is kept (see Carey v. Schwab, 122 A.D.3d 1142, 1143–1145, 997 N.Y.S.2d 180 ), which is not at issue here, "New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal" (Egan v. Hom, 74 A.D.3d 1133, 1134, 905 N.Y.S.2d 624 ; see Hastings v. Sauve, 21 N.Y.3d at 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 ; Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ). Thus, "[t]o recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog ... knew or should have known of such propensities" (Palumbo v. Nikirk, 59 A.D.3d 691, 691, 874 N.Y.S.2d 222 ; see Petrone v. Fernandez, 12 N.Y.3d at 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 ; Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Ostrovsky v. Stern, 130 A.D.3d 596, 13 N.Y.S.3d 462 ). Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others (see Collier v. Zambito, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 ; Dickson v. McCoy, 39 N.Y. 400, 403 ; Claps v. Animal Haven, Inc., 34 A.D.3d 715, 716, 825 N.Y.S.2d 125 ). "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" (Hodgson–Romain v. Hunter, 72 A.D.3d 741, 899 N.Y.S.2d 300 ; see Bard v. Jahnke, 6 N.Y.3d 592, 597, 815 N.Y.S.2d 16, 848 N.E.2d 463 ; Velez v. Andrejka, 126 A.D.3d 685, 5 N.Y.S.3d 212 ; Feit v. Wehrli, 67 A.D.3d 729, 888 N.Y.S.2d 214 ; Galgano v. Town of N. Hempstead, 41 A.D.3d 536, 840 N.Y.S.2d 794 ).
Contrary to the defendants' contention, the Supreme Court properly concluded that the plaintiffs, in support of their motion for summary judgment on the issue of liability, established, prima facie, that Diva had vicious propensities and that the defendants knew or should have known of such propensities. In opposition, the defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.
While the defendants took an appeal from the second order entered November 3, 2014, we dismiss this appeal as abandoned since the defendants do not seek reversal or modification of any portion of this order in their brief and reply brief (see generally Batts v. IBEX Constr., LLC., 112 A.D.3d 765, 977 N.Y.S.2d 282 ; Trinagel v. Boyar, 99 A.D.3d 792, 793, 952 N.Y.S.2d 247 ).