Supreme Court, Kings County, February 20, 2018

Purcell & Ingrao, P.C., Mineola, and Law Office of James J. Toomey, New York City, for Linden Brewery, Inc. and another, defendants.

Peter E. Tangredi & Associates, White Plains, for plaintiff.

This is a personal injury action commenced by plaintiff Maya Martinez Smith on August 1, 2013, by filing a summons and verified complaint to recover monetary damages against codefendant Linden Brewery, Inc. for injuries sustained on August 6, 2010, when a brown labrador jumped at plaintiff in a doorway to a residential building, located at 136 Harriman Road, Irvington, New York (premises), causing plaintiff to fall{**61 Misc 3d at 442} back to the ground and suffer injuries. Linden Brewery owns the premises and its principal, Ronald Fatato, resides at the premises with his family. Issue has been joined, discovery is complete, and note of issue has been filed. Before the court is a motion by Linden Brewery for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint as asserted against it. Plaintiff is in opposition to the motion and Linden Brewery submits a reply.

Plaintiff alleged that on August 6, 2010, she was injured when a labrador retriever jumped at her and knocked her down in the small vestibule of the residential building located on the premises, also known as Linden Brewery. Third-party defendants Ellisa Bosshart and Matthew Bosshart owned the labrador retriever, named Cooper. The Fatatos owned a cockapoo, named Maggie. The Bossharts rented an apartment from codefendant Fatato Associates, L.P. on the neighboring property. At the time of plaintiff's accident, Cooper was a two-year-old puppy and resided in the apartment with the Bossharts and their young children and two cats (see notice of mot, exhibit K, Ellisa Bosshart answer ¶ 8). Cooper also received training from a licensed dog trainer and was friendly towards people (id.). Plaintiff testified that on the day of her accident she was an overnight guest of the Fatatos at the premises.

Plaintiff testified that she became aware that Cooper was inside the Fatatos' residence shortly before her accident; hence, she wanted to retrieve Maggie from the courtyard in front of the house. Plaintiff was standing in the doorway between the interior door and the screen door in the vestibule when she called Maggie to go inside the house. As plaintiff was holding the screen door open for Maggie, she saw Cooper approaching Maggie. Then, Maggie ran through the doorway and through plaintiff's feet. Cooper followed Maggie and jumped at plaintiff as the two dogs came almost simultaneously into the vestibule. Plaintiff fell back on the floor in the vestibule and Cooper landed on top of her. Cooper did not bite plaintiff. Ronald Fatato Jr. immediately came over to the vestibule, pulled Cooper away from plaintiff, and removed the dog from the house. Two days after her accident, plaintiff went to an emergency room to treat her injuries.

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is{**61 Misc 3d at 443} entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez, 68 NY2d at 324; CPLR 3212 [b]). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2d Dept 1974]). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

When deciding a summary judgment motion, the court's role is solely to determine if any material and triable issues of fact exist, not to determine the merits of any such issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is 'arguable'; 'issue-finding, rather than issue-determination, is the key to the procedure' " (id. [citations omitted]). The court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]; Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; CPLR 3212 [b]).

"For [over 200] years [now], 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{**61 Misc 3d at 444} propensities" (Collier v Zambito, 1 NY3d 444, 446 [2004], citing Vrooman v Lawyer, 13 Johns 339 [1816], Hosmer v Carney, 228 NY 73, 75 [1920], and Restatement [Second] of Torts § 509). Vicious propensities constitute the "propensity to do any act that might endanger the safety of the persons and property of others in a given situation, including behavior that is dangerous but not necessarily aggressive" (Doerr v Goldsmith, 25 NY3d 1114, 1121-1122 [2015], citing Collier, 1 NY3d at 446 [internal quotation marks omitted]). "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" (Matthew H. v County of Nassau, 131 AD3d 135, 147 [2d Dept 2015]; see also Collier, 1 NY3d at 447).

1. Plaintiff's Strict Liability Claim

a. Liability for Harboring a Dog with Vicious Propensities

"[S]trict liability for damages arising from the vicious propensities and vicious acts of a dog extends to a person who harbors the animal although not its owner" (see Matthew H., 131 AD3d at 144 [internal quotation marks omitted]). A person "harbors a dog by 'making it [a] part of his [or her] household,' " even if he or she does not assume control over the animal (id. at 145). Furthermore, section 108 (10) of the Agriculture and Markets Law defines harboring as providing food or shelter to a dog (id.). [*2]However, there can be no strict liability arising from the vicious propensities and vicious acts of a dog "against a defendant who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises" (id. at 144, citing Rodriguez v Messenger, 108 AD2d 1085, 1085 [3d Dept 1985], Nidzyn v Stevens, 148 AD2d 592, 593 [2d Dept 1989], and Arslanoglou v Defayette, 105 AD2d 973, 974 [3d Dept 1984]).

[1] Here, the court finds that Linden Brewery met its burden of proof to show, prima facie, that it did not harbor, exercise dominion or control, or permit the Bossharts' dog, Cooper, to remain on the premises. In support of its motion for summary judgment, Linden Brewery submitted deposition testimony of Ronald Fatato that clearly establishes that neither the Fatatos, nor Linden Brewery, harbored Cooper, as the dog entered the premises and the Fatatos' kitchen only one time prior to the day of plaintiff's accident, in July 2010, when Mrs. Fatato left the front door to their residence open (see notice of mot, exhibit{**61 Misc 3d at 445} M, Fatato tr at 19-22, 27, 35-37). At the time of this incident, Ronald Fatato immediately removed Cooper from the kitchen by coaxing the dog to go outside, without Cooper displaying signs of resistance or aggression (id. at 35-37). Linden Brewery thus established that it did not, nor did the Fatatos, exercise any form of dominion or control over Cooper. Nor did they provide food or shelter to Cooper, or allow him to be in the Fatatos' residence or on the premises. Therefore, the occasional and brief presence of Cooper on the premises does not rise to the level of harboring and plaintiff failed to raise any triable issue of fact with regard to this matter (see Matthew H., 131 AD3d at 145, citing Nidzyn, 148 AD2d at 593).

b. Requirement of Knowledge of the Dog's Vicious Propensities

The owner or harborer of a dog that exhibits vicious proclivities is not entitled to the "one free bite rule" and even a dog that "has not previously bitten or attacked may subject its owner or harborer to strict liability where its propensities are apparent," such as when the dog growls, snaps, or bares its teeth (Matthew H., 131 AD3d at 148; Collier, 1 NY3d at 447-448). Indeed, knowledge of a dog's vicious or violent proclivity "may . . . be established by[,] [among other things,] proof of prior acts of a similar kind of which the owner [or harborer] had notice" (Collier, 1 NY3d at 446).

Moreover,

"an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit" (id. at 447).

Thus, "[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 sufficient to find that the dog has vicious propensities and to hold the defendant strictly liable for plaintiff's injuries stemming from such act of the dog (Anderson v Carduner, 279 AD2d 369, 369-370 [1st Dept 2001] [citations and internal quotation marks omitted]). Nevertheless, plaintiff must "demonstrate that the defendant knew of the dog's vicious propensities before the plaintiff could recover for the injuries caused by the . . . dog" (see Doerr, 25 NY3d at 1124, discussing Smith v Reilly, 17 NY3d 895 [2011]).

{**61 Misc 3d at 446} [2] Here, the court finds, as a threshold matter, that Cooper did not have a vicious or violent propensity to jump on or run into people and Linden Brewery proffered sufficient evidence to establish, prima facie, that it did not have knowledge of such alleged vicious proclivities. In its motion and reply, Linden Brewery avers that Cooper did not have vicious proclivities and Linden Brewery had no knowledge of same because Cooper did not attack, bite, snap, bark, or snarl at anyone prior to plaintiff's accident (see notice of mot ¶¶ 28, 39; reply ¶ 25). In support of the motion, Linden Brewery submitted the deposition testimony of Ronald Fatato and declaration of Louis Fatato. This evidence shows that although Cooper had previously been running away from the Bossharts, Cooper ran into the Fatatos' home on one occasion in July 2010 prior to plaintiff's accident. While the dog was inside the house, he did not bite anyone, snap or snarl at anyone, nor was Cooper in other ways aggressive (see notice of mot, exhibit M, Fatato tr at 35; exhibit N, Fatato declaration at 1; reply ¶ 25). Furthermore, Linden Brewery argues that plaintiff testified that no one told her anything about Cooper on her prior visits to the Fatatos' residence (reply ¶ 26).

In opposition, plaintiff argues that there is an issue of triable fact as to whether Cooper had vicious proclivities and Linden Brewery had knowledge of them because Ronald Fatato had suffered similar injuries as plaintiff as a result of the June 2010 escape incident (see plaintiff's opp at 2-4). Plaintiff points out that during that incident Cooper jumped over a two to three feet high wall to enter the Fatatos' residence and then jumped on Ronald Fatato in the kitchen. Since Cooper exhibited this pattern of "bad behavior," plaintiff asserts, a question of triable fact arises as to whether Linden Brewery could be strictly liable for plaintiff's injuries (id. at 4). However, contrary to plaintiff's assertion, Ronald Fatato testified that the dog was merely jumping around the kitchen and he did not jump at Mr. Fatato or attack him, nor was Cooper aggressive (see notice of mot, exhibit M, Fatato tr at 35). Furthermore, Ronald Fatato stated that Cooper was playful and excited, and did not snarl or bark at him (id. at 35-37). Ronald Fatato coaxed Cooper to go outside and the dog left the kitchen without resistance (id. at 36).

On the question of vicious propensity of dogs jumping at or running into people, several precedents are instructive. In Anderson, the dog owner had knowledge that the dog had a{**61 Misc 3d at 447} tendency to "rise up" to "greet people" (see Anderson, 279 AD2d at 369). The plaintiff was injured when the dog poked its snout in her eye while the dog was standing up on the hind legs (id.). The Anderson Court held that there was an issue of fact as to whether plaintiff's injury was foreseeable from the dog's behavior to stand up to people (id.). If it were, the Court stated, the defendant would be held strictly liable for the dog's known vicious propensity to rise up to people (id.). In Francis, the defendant's family dog had a tendency to jump up on children and chase them at her day care facility (Francis v Curley Family Ltd. Partnership, 33 AD3d 852, 853-854 [2d Dept 2006]). As a result, the defendant had to confine and lock up the dog from time to time (id.). The Francis Court held that the plaintiff raised a triable issue of fact as to the issue of strict liability of the defendant based on the propensity of the dog to jump up on children (id. at 854). Here, unlike in Anderson and Francis, there is no evidence that Cooper had a tendency to jump on people.

In Butler, the defendant's dog ran at the infant plaintiff who was playing in the owner's yard and they both collided (see Butler v Brischoux, 244 AD2d 444, 444 [2d Dept 1997]). The Butler Court granted the defendant's motion for summary judgment because there was no evidence that the dog had a vicious propensity and that the defendant knew of any vicious propensity of the dog (id.). In Cameron, the dog was playing with the defendant in Prospect Park when it ran into plaintiff and struck the back of plaintiff's lower leg causing her to fall to the ground (Cameron v Harari, 19 AD3d 631, 631 [2d Dept 2005]). The plaintiff also testified that on two prior occasions, she observed the defendant's dog jumping on people so that the defendant had to restrain the dog (brief for plaintiffs-appellants, available at 2004 WL 3801028, *3). Furthermore, the defendant acknowledged that the dog had a propensity to jump on individuals whom the dog had previously met (id.). Despite this, the Cameron Court granted the defendant's motion for summary judgment for want of defendant's knowledge that her dog had a vicious propensity to run into people (Cameron, 19 AD3d at 631).

In Zelman, the dog, a German shepherd, jumped over a low hedge and knocked the plaintiff down to the ground when he was working in a neighboring yard (Zelman v Cosentino, 22 AD3d 486, 486 [2d Dept 2005]). While allegedly standing on the plaintiff's chest for a brief moment, the dog was also growling{**61 Misc 3d at 448} and snapping before it got off the plaintiff and returned to its yard (id.). Furthermore, the dog in Zelman was a "police dog" and the defendant kept the dog either in the basement of the house or chained to a fence in the backyard (see reply brief for plaintiffs-appellants, available at 2005 WL 4012837, *4). The dog also escaped from the basement and ran away on one occasion several years before the plaintiff's accident (Zelman, 22 AD3d at 487). Although the police had to tranquilize the dog before returning it to the defendant, the dog nevertheless did not jump on or attack people during the escape incident (id.). The Zelman Court granted defendant's motion for summary judgment on strict liability because the Court found that the dog did not have a vicious propensity to jump at people, of which the defendant would have awareness, because the dog had never previously jumped on anyone (id.).

Here, plaintiff testified that after Maggie began running towards plaintiff and the door she was holding open, Cooper followed Maggie and allegedly jumped on plaintiff when the two dogs entered almost simultaneously the vestibule of the Fatatos' residence. Thus, as plaintiff's testimony shows, she found herself in the way of two running dogs, with Cooper following Maggie, and he tried to run through the open doorway in which plaintiff happened to be standing. Plaintiff also testified that, somewhat similar to Zelman, Cooper snapped and barked at plaintiff while the dog was on top of her for a short while after they both trampled down, as the doors had already closed and they became trapped inside the vestibule until Ron Fatato Jr. removed Cooper from the house (see notice of mot, exhibit L, Smith tr at 74-78).

Most importantly, as in Francis, Butler, Cameron, and Zelman, there is no evidence that Cooper jumped at anyone prior to plaintiff's accident. Cooper was a family dog that the Bossharts kept unconfined and unchained and he did not exhibit threatening behavior in the past (see notice of mot, exhibit K, Elissa Bosshart answer). Taken together, Linden Brewery thus proffered sufficient evidence to make its prima facie case that it did not have knowledge of Cooper's vicious proclivities, did not own, harbor, exercise dominion or control over the dog, and did not allow Cooper to remain on its premises. In opposition, plaintiff failed to raise a triable issue of fact that Linden Brewery had notice of Cooper's vicious propensities. Therefore, Linden Brewery's motion for summary judgment seeking to dismiss plaintiff's claim that Linden{**61 Misc 3d at 449} Brewery is strictly liable for plaintiff's injuries caused by the dog is granted.

2. Plaintiff's Common-Law Negligence Claim

New York rejects the majority rule that allows holding animal owners liable for negligence lawsuits for failing to restrain or supervise a domestic pet (Doerr, 25 NY3d at 1129 ["New York society has had no reasonable expectation that all domestic pets will be perpetually confined in their homes or physically restrained at all times. . . . The average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner's premises and may harm others depending on the disposition of the pet and the degree of training it has received"]).

In its motion for summary judgment and reply, Linden Brewery correctly maintains that it cannot be held liable for plaintiff's injuries under the theory of negligence because New York does not recognize a cause of action for negligent owner liability for injuries caused by a domestic animal (see notice of mot ¶¶ 29, 41; reply ¶¶ 8-13). Plaintiff argues, in opposition, that Linden Brewery should have taken precautionary measures to prevent Cooper from intruding onto the premises, such as insisting that Cooper be caged or removed from the Bossharts' apartment, or that Linden Brewery should have notified animal control about Cooper's prior incident at the Fatatos' residence in June 2010 (see plaintiff's opp at 2-3).

[3] The court finds, however, that plaintiff's argument that liability for her injuries attaches to Linden Brewery on the grounds of negligence is unavailing. With regard to dogs in particular, the Court of Appeals held most recently in Doerr that owners of domestic pets may not be held liable for negligence for failing to "confine the animal to the owner's property or to restrain the animal" on the owner's property or in other locations, and "from running into another person" (Doerr, 25 NY3d at 1124, 1129, discussing Hastings v Sauve, 21 NY3d 122 [2013], Petrone v Fernandez, 12 NY3d 546 [2009], and Smith, 17 NY3d at 895]). In Doerr, plaintiff Doerr alleged that Smith and Goldsmith were negligent in controlling and directing their dog when the dog ran across the street into the bike path of Doerr who hit the dog and was thrown off his bike (id. at 1117). Also in Doerr, the Lockharts released two German shepherds onto the outdoor part of the farm and the dogs started barking and ran into the road toward plaintiff Dobinski (id. at 1120). Dobinski struck one of the dogs with the{**61 Misc 3d at 450} bicycle and flipped over the front of it as a result (id.). Dobinski argued, inter alia, that the Lockharts negligently created and maintained a dangerous condition on their property and the roadway because they failed to restrain their dogs to the property (id.). The Doerr Court granted both defendants' motions for summary judgment that defendants in both underlying actions were not liable in negligence for creating a dangerous condition on the roadway and property by mishandling their dogs (see id. at 1134-1140).

Here, Cooper escaped the Bossharts' apartment and intruded onto the property owned by Linden Brewery on two separate occasions. In her opposition, plaintiff contends that as an invitee to the premises she was entitled to a safe environment, which Linden Brewery failed to provide to protect plaintiff from harm caused by Cooper (see plaintiff's opp at 2-5). However, as discussed, supra, Linden Brewery does not stand in the shoes of an owner or harborer of Cooper and Linden Brewery is not otherwise strictly liable for damages caused to plaintiff by Cooper. Additionally, Doerr precludes plaintiff from bringing her common-law negligence claim against Linden Brewery for failing to restrain Cooper so as to prohibit the dog from entering the premises and running into plaintiff (see Doerr, 25 NY3d at 1124; Egan v Hom, 74 AD3d 1133, 1134 [2d Dept 2010]). Therefore, the branch of Linden Brewery's motion seeking to dismiss the common-law negligence claim against it is granted.

For these reasons, it is ordered that defendant Linden Brewery's motion, pursuant to CPLR 3212, seeking summary judgment dismissing the complaint as asserted against it is granted in its entirety.