Opinion
1533 CA 17–00165
02-02-2018
S.K., an Infant by Her Mother and Natural Guardian, Tiffany Kobee, and Tiffany Kobee, Individually, Plaintiffs–Respondents, v. Beverly KOBEE and Devin Kobee, Defendants–Appellants. (Appeal No. 1.)
MURA & STORM, PLLC, BUFFALO (ROY A. MURA OF COUNSEL), FOR DEFENDANTS–APPELLANTS. FINKELSTEIN & PARTNERS, LLP, NEWBURGH (VICTORIA LIGHTCAP OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
MURA & STORM, PLLC, BUFFALO (ROY A. MURA OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
FINKELSTEIN & PARTNERS, LLP, NEWBURGH (VICTORIA LIGHTCAP OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Plaintiffs commenced this action seeking, inter alia, damages for injuries sustained by the infant plaintiff (hereafter, plaintiff) when a dog owned by defendants bit plaintiff's face. In appeal No. 1, defendants appeal from an amended order denying their motion for summary judgment dismissing the amended complaint. In appeal No. 2, defendants appeal from a further order that, inter alia, granted plaintiffs' motion to quash a subpoena.
With respect to appeal No. 1, we agree with defendants that the court erred in denying their motion. Thus, we reverse the amended order in appeal No. 1, grant the motion and dismiss the amended complaint. Since at least 1816 (see e.g. Vrooman v. Lawyer, 13 Johns. 339, 339 [1816] ), "the law of this state has been that the 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 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ). It is equally well settled, however, that, "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier " ( Bard v. Jahnke, 6 N.Y.3d 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006] ). Thus, "[t]here is no cause of action in negligence as against the owner of a dog who causes injury, but one may assert a claim in strict liability against a dog owner for harm caused by the dog's vicious propensities when the owner knew or should have known of those propensities" ( Clark v. Heaps, 121 A.D.3d 1384, 1384, 995 N.Y.S.2d 356 [3d Dept. 2014] ; see Blake v. County of Wyoming, 147 A.D.3d 1365, 1367, 46 N.Y.S.3d 753 [4th Dept. 2017] ).
Here, defendants met their initial burden on their motion by establishing as a matter of law that they lacked actual or constructive knowledge that their dog had any vicious propensities (see Scheidt v. Oberg, 65 A.D.3d 740, 740, 883 N.Y.S.2d 661 [3d Dept. 2009] ; see generally Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116, 14 N.Y.S.3d 726, 35 N.E.3d 796 [2015] ), and plaintiffs failed to raise a triable issue of fact (see Scheidt, 65 A.D.3d at 740–741, 883 N.Y.S.2d 661 ; cf. Arrington v. Cohen, 150 A.D.3d 1695, 1696, 53 N.Y.S.3d 450 [4th Dept. 2017] ).
In light of our determination in appeal No. 1, we dismiss the appeal from the order in appeal No. 2 as moot.
It is hereby ORDERED that the amended order so appealed from is unanimously reversed on the law without costs, the motion is granted and the amended complaint is dismissed.