Opinion
125 CA 18–01404
06-07-2019
Mary A. PAUSZEK, Plaintiff–Respondent, v. Amy M. WAYLETT, Defendant–Appellant, Michael Lin and Juel Lin, Also Known as Jewel C. Lin, Defendants.
WALSH, ROBERTS & GRACE, BUFFALO (ROBERT P. GOODWIN OF COUNSEL), FOR DEFENDANT–APPELLANT. FESSENDEN, LAUMER & DEANGELO, PLLC, JAMESTOWN (MARY B. SCHILLER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
WALSH, ROBERTS & GRACE, BUFFALO (ROBERT P. GOODWIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
FESSENDEN, LAUMER & DEANGELO, PLLC, JAMESTOWN (MARY B. SCHILLER OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she tripped in a "divot" on her own property and fell after she was frightened by a dog owned by her neighbors, defendants Michael Lin and Juel Lin, also known as Jewel C. Lin, who were renting their home from Amy M. Waylett (defendant). Supreme Court denied defendant's motion for summary judgment dismissing the amended complaint against her, and we affirm.
Contrary to defendant's contention, she failed to establish as a matter of law that she did not owe a duty of care to plaintiff. Although plaintiff was injured on her own property, the conduct of the dog in question occurred on defendant's property (cf. Walker v. Gold, 70 A.D.3d 1349, 1350, 894 N.Y.S.2d 809 [4th Dept. 2010], lv denied 14 N.Y.3d 712, 903 N.Y.S.2d 771, 929 N.E.2d 1006 [2010] ; Seiger v. Dercole, 50 A.D.3d 1524, 1524, 856 N.Y.S.2d 771 [4th Dept. 2008] ; Ruffin v. Dykes, 37 A.D.3d 1191, 1191, 830 N.Y.S.2d 426 [4th Dept. 2007] ; Weipert v. Oldfield, 298 A.D.2d 974, 974, 748 N.Y.S.2d 123 [4th Dept. 2002] ), and defendant's own evidence raised a triable issue of fact whether she took "reasonable precautions for the protection of third persons" ( Strunk v. Zoltanski, 62 N.Y.2d 572, 577, 479 N.Y.S.2d 175, 468 N.E.2d 13 [1984] ).
Contrary to her further contentions, defendant also failed to establish as a matter of law that the dog did not have vicious propensities or that she lacked notice of those propensities (see id. ). In support of her motion, defendant submitted evidence that, after the Lins moved into the premises, the dog was observed lunging at or jumping on people. Although "barking and running around" is generally considered normal canine behavior and does not amount to vicious propensities ( Collier v. Zambito, 1 N.Y.3d 444, 447, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ), "[a] known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make [a] defendant[ ] liable for damages resulting from such an act" ( Lewis v. Lustan, 72 A.D.3d 1486, 1487, 899 N.Y.S.2d 767 [4th Dept. 2010] [internal quotation marks omitted] ). In addition, the act of lunging at people may also be considered a vicious propensity (see Merwin v. McCann, 129 A.D.2d 925, 926, 514 N.Y.S.2d 566 [3d Dept. 1987] ; cf. Gill v. Welch, 136 A.D.2d 940, 940, 524 N.Y.S.2d 692 [4th Dept. 1988] ; see also Sorel v. Iacobucci, 221 A.D.2d 852, 853, 633 N.Y.S.2d 688 [3d Dept. 1995] ; O'Brien v. Amman, 21 Misc.3d 1118 (A), 2008 N.Y. Slip Op. 52096[U], 2008 WL 4657790, *3 [Sup. Ct., Allegany County 2008] ).
With respect to whether defendant had notice of the dog's allegedly vicious propensities, defendant submitted evidence that plaintiff's husband had complained about those very propensities to defendant's property manager, i.e., her agent. Although the property manager denied receiving such complaints, he admitted observing similar behavior by the dog. "The general rule is that knowledge acquired by an agent acting within the scope of his [or her] agency is imputed to his [or her] principal and the latter is bound by such knowledge [even if] the information is never actually communicated to [the principal]" ( Center v. Hampton Affiliates, 66 N.Y.2d 782, 784, 497 N.Y.S.2d 898, 488 N.E.2d 828 [1985] ; see Kirschner v. KPMG LLP, 15 N.Y.3d 446, 465, 912 N.Y.S.2d 508, 938 N.E.2d 941 [2010] ). Thus, regardless whether the property manager informed defendant of what he heard or observed of the dog's allegedly vicious propensities, defendant is deemed to have notice of those propensities.
Inasmuch as defendant failed to meet her initial burden on the motion, the burden never shifted to plaintiff to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).