Facts of the Case.

On September 29, 2010 the defendants' dog, "Gomer", a coonhound mix, attacked the plaintiffs' little dog, "Pookie". Plaintiffs and defendants were

neighbors residing in a side-by-side duplex. On the date in question, defendant, Samantha

Perkins, was going out to tie up her dog in the back yard. While doing so, Gomer got away and

attacked the plaintiffs, who were in the back yard of the duplex at that time. The plaintiffs were

not injured and managed to get away from the dog. Gomer then ran around to the front of the

duplex on the plaintiffs' side, where plaintiffs' roommate was sitting on the porch. Defendants'

dog proceeded to chase that individual into the front door of the plaintiffs' residence. Once

inside plaintiffs' residence, Gomer attacked their dog causing life threatening injuries to Pookie,

that required surgery and significant follow up veterinary care. The bills generated by said attack

and submitted to the court amounted to $1,167.95.

Plaintiffs sued the defendants in the Small Claims Part of Webster Justice Court. They

sought reimbursement for veterinary bills incurred by them as a result of the injuries sustained by [*2]

their dog. Plaintiff, Kimberly A. Wilcox, testified that she was not aware of any vicious

propensities of Gomer. Nor had she ever seen the defendants' dog attack another animal. These facts were confirmed by the defendant, Samantha Perkins. The defendants adopted Gomer from

Lollypop Farm, which is operated by the Humane Society of Rochester, about a year before the

attack on plaintiffs' dog. In addition, the defendants entered into evidence a letter from Lollypop

Farm, which stated that "Based on paper work and conversations with staff during the time

Gomer was at Lollypop Farm we did not observe any aggression toward other dogs." Ms.

Perkins did testify that since she had a baby the behavior of the dog changed in that she had

observed him bark and growl from time to time. She also testified that the dog was not very

obedient.

Issue Presented

Are the defendants liable for damages caused by the attack of their dog on the plaintiffs'

dog?

Legal Analysis

Strict Liability. "New York recognizes a cause of action which imposes strict liability

[no proof of negligence necessary] upon owners for injuries inflicted by their vicious dogs, the

owners having knowledge thereof and viciousness being defined as prior bites and/or

mischievous propensities...."Nardi v. Gonzalez ,165 Misc 2d 336,339, 630 N.Y.S.2d 215,217

(1995).In Toolan v. Hertel, 201 AD2d 816, 607 N.Y.S.2d 198 (3rd Dept. 1994) the court

granted the defendant's motion for summary judgment dismissing plaintiff's strict liability claim

for personal injuries caused by defendant's English Mastiff, because plaintiff failed to establish

that the dog had vicious propensities and that the owner was aware of those propensities. In [*3]

Althoff v. Lefebvre, 240 AD2d 604, 658 N.Y.S.2d 695 (2nd Dept. 1997) defendant's motion for

summary judgment dismissing plaintiff's strict liability claim for injuries sustained in a fall

caused by defendant's dog was granted, when plaintiff failed to establish defendant's knowledge

of any vicious propensities of said dog. A strict liability action based on a dog bite suffered by a

plaintiff when she entered a fenced in yard was dismissed because the "... the plaintiff failed to

raise any question of fact that Sampson [the offending dog] exhibited any special attribute, such

as extreme size or strength, which would have required the owners to exercise a higher degree of

care to prevent possible injuries." Luts v. Weeks, 268 AD2d 568, 704 N.Y.S.2d 89,90 (2nd Dept.

2000). The New York State Court of Appeals dealt with this issue in Collier v. Zambito,

1 NY3d 444, 775 N.Y.S.2d 205 (2004) .In that case the defendants owned a beagle-collie-

rottweiler mix that bit a twelve year old boy, by the name of Matthew, who was visiting the

defendants' son. The defendants had always put the dog behind a gate when they had company

since the dog would bark. In any event, the boy was invited by the defendant to approach the

dog, who was on a leash, to have her dog, Cecil, smell him. Despite the fact that Matthew

had been in the home before, Cecil jumped up and bit the young man on the face. The action was

brought by the boy's mother on the child's behalf against Cecil's owners for damages suffered as

a result of the bite. "The parties testified at their examination before trial that, to their

knowledge, Cecil had never previously threatened or bitten anyone."^[FN1] The trial court denied the

summary judgement motion of both parties. As to the defendants' motion, the trial judge

referred to the fact that the defendants confined Cecil in the kitchen behind a gate when company [*4]

was present as implied knowledge of the dog's vicious propensities. The Appellate Division

reversed the findings of the trial judge "... finding that plaintiff failed to raise an issue of fact as

to whether the defendants were aware or should have been aware of their dog's alleged vicious

propensities (299 AD2d 866, 750 N.Y.S.2d 249 [2002]."^[FN2] The court further found no evidence that Cecil actually had vicious propensities of the type that resulted in Matthew's injury"^[FN3] The

Court of Appeals affirmed the ruling of the Appellate Division.^[FN4] In do doing the court stated

"But nothing in our case law suggests that the mere fact that a dog was kept enclosed or chained

or that a dog previously barked at people is sufficient to raise a triable issue of fact as to whether

it had vicious propensities."^[FN5]

The Court of Appeals went on to indicate in the Collier case that it has been the law of

this state for many years that "... the owner of a domestic animal who either knows or should

have known of the animal's vicious propensities will be held liable for the harm the animal

causes as a result of those propensities ...."^[FN6] The court went on to define vicious propensities to

mean "... the propensity to do any act that might endanger the safety of the persons and property

of others in a given situation."^[FN7] The court indicated that one must look to any prior similar

actions of a dog as evidence of vicious or dangerous behavior.However, a dog need not have [*5]

previously bitten anyone to show vicious propensities.Evidence of a tendency to "growl",

"snap or bare its teeth" or the fact that the owner found the need to confine or restrain the dog

may also be relevant.^[FN8] Even the behavior of a domestic animal that is not necessarily vicious,

but is dangerous and that fact is known by the owner may be actionable "... only when such

proclivity results in the injury giving rise to the lawsuit."^[FN9] Thus, under the facts herein, the

defendants would have no liability to the plaintiffs on a theory of strict liability.

Common Law Negligence. In the instant case the defendants failed to maintain control

of their dog. As the testimony indicated, Samantha Perkins was attempting to tie out the dog in

the back yard, when Gomer got loose and went after the plaintiffs, their roommate and ultimately

plaintiffs' dog inside plaintiffs' residence. However, in Smith v. Farner, 229 AD2d 1017, 645

N.Y.S.2d 355,356 (4th Dept. 1996) the court stated

"There is no merit to the contention of the plaintiff that she may

assert a comon-law negligence cause of action against defendant

based upon his failure to secure the dog properly, without having

to prove that the dog had vicious propensities of which defendant

was aware. Liability is not dependent upon proof of negligence

in the manner of keeping or confining the animal, but is predicated

upon the owner's keeping of the animal, despite his knowledge of

of the animal's vicious propensities' Lynch v. Nacewicz, 126 A.D.

2d 708,709, 511 N.Y.S.2d 121."

Again, no liability would attach to the defendants for the actions of their dog, Gomer, under a

theory of common law negligence.

Substantial Justice. The standard of proof in a small claims matter is set out in Uniform

Justice Court Section 1804 in pertinent part as follows: "The court shall conduct hearings upon [*6]

small claims in such manner as to do substantial justice between the parties according to the rules

of substantive law...." Nevertheless, "It is tempered ... by the instruction that the small claim

[judge] is to do substantial justice' within the framework of the substantive law. This guidepost

is set forth for the conduct of the hearing as well as for the ultimate test: the criterion for

appellate review. What is apparently meant is that the substantive law can be flexed a bit as long

as it is not broken off entirely." Siegel, New York Practice, Section 581. This case is particularly

difficult from the standpoint of a conflict between what one would consider substantial justice

and the clear status of the substantive law, particularly case law, governing these types of cases.

Specifically the injuries sustained by the plaintiffs' dog were both life threatening and heart wrenching based on the pictures entered into evidence by the plaintiffs. Plus there was the

added insult of the attack taking place within plaintiffs' residence. The fact of the matter is that

in many instances the conflict between the concept of substantial justice and the substantive law

is unresolvable.^[FN10] In such cases substantive law must govern.

Agriculture and Markets Law. At the time of the injuries sustained by plaintiffs' dog,

i.e. September of 2010, the Dangerous Dogs Section of the Agriculture and Markets Law was

numbered as Section 121. Subsection 10 of that statute stated in pertinent part, as follows: "The

owner or lawful custodian of a dangerous dog shall ... be strictly liable for medical costs resulting

from injury caused by such dog to a person, companion animal [emphasis added], farm animal

or domestic animal."^[FN11] This now begs the question as to whether the plaintiffs herein can be

compensated for the veterinary bills they incurred as a result of the injuries sustained by their

dog, Pookie, under that provision of the Agriculture and Markets Law. [*7]

"The definition of a dangerous dog has been interpreted to require a

finding of such condition by a court. See Town of Hempstead v.

Lindsey, 25 Misc 3d 1235(A), 2009 WL 4337703 (Dist. Ct.

Nassau City. 2009). However, 121.10,^[FN12] unlike the section

which precedes it, does not require that a dog was previously

found to be a dangerous dog' as a condition to holding the

owner strictly liable for medical costs." Budway, v. McKee,

27 Misc 3d 316,320 893 N.Y.S.2d 766,769 (2010).

In Budway v. McKee the court denied that portion of defendant's motion for summary

judgment because the plaintiff "raised a statutory claim for medical costs and demonstrated

the presence of issues of fact with respect to such claim." ^[FN13]

Conclusion.

In this case the conflict, between the substantive law, as established by the case law

defining the liability of a dog owner or custodian under theories of strict liability and common

law negligence and the concept of substantial justice, is resolved by the dangerous dog

provisions of the Agriculture and Markets Law, previously numbered as Section 121(10) and

currently numbered as Section 123(10).As stated in Budway v. McKee, 27 Misc 3d 316,320,

893 N.Y.S.2d 766,769 (2010, Hon. Daniel R. Palmieri, J.),

"... the omission of a predicate finding of dangerousness from the

medical cost provisions leads to the conclusion that the Legislature

intentionally created a cause of action for medical costs resulting

from an injury caused by a dog to a person (and certain animals)

and that liability for such costs may be established simply by

showing an attack without justification, which is the definition

of a dangerous dog'.... See Christensen v. Lundsten (21 Misc 3d

651, 863 N.Y.S.2d 886 (District Ct. Suffolk Cty. 2008)." [*8]

In the instant action the plaintiffs established that the injuries sustained by their dog,

Pookie, were caused by the defendants' dog. Plaintiffs further established, that the veterinary

bills generated by the attack were in the amount of $1,167.95. Wherefore, the court finds that

the defendants are liable to the plaintiffs for $1,167.95, pursuant to Agriculture and Markets Law Section 121(10).^[FN14] Judgment shall enter in favor of the plaintiffs and against the defendants in

that sum of $1,167.95 together with the filing fee of $15.00 for a total of $1,182.95. This

constitutes the decision and order of the court.

Dated: Webster, New York

January 31, 2011

_________________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice