The following e-filed papers read on this motion by defendants for summary judgment, pursuant to CPLR 3212, dismissing the complaint and all cross-claims against them. Papers Numbered Notice of Motion — Affirmation — Exhibits 1 Affirmation in Opposition 2 Reply Affirmation 3 ADDITIONAL CASES Dolores Cajamarca and Baltazar Cajamarca, Third-Party Plaintiffs v. Robert Keith Spurgeon, Jr., Third-Party Defendant Upon the foregoing papers, it is ordered that the motion is determined as follows: In this action to recover for personal injuries sustained by plaintiff when he fell after third-party defendant, Robert Keith Spurgeon, Jr.’s brown dog jumped on plaintiff on November 2, 2019, in front of premises located at 93-20 103rd Avenue, County of Queens, City and State of New York. Defendants owned the subject premises, wherein Spurgeon was a tenant. Defendants move for summary judgment on the ground that defendants had no knowledge of any complaints about the dog and merely informed Spurgeon to keep his dog on a leash. In support, defendants, submit, among other things, surveillance video of the incident, affidavit of defendant, Dolores Cajamarca, deposition testimony of plaintiff, non-party witness, Jennie Stuart, and that of defendant, Balthazar Cajamarca. It is well settled that “‘New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal’” Abrahams ex reI. Reid v. City of Mount Vernon, 152 AD3d 632 [2d Dept 2017] [citation omitted]. “The sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability, whereby “a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities” (Bukhtiyarova v. Cohen, 172 AD3d 1153 [2d Dept 2019], citing Ioveno v. Schwartz, 139 AD3d 1012 [2d Dept 2016]). “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” (Costanza v. Scarlata, 188 A.D.3d 1145, 1146, 132 N.Y.S.3d 844, 845 [2d Dept 2020], citing Bard v. Jahnke, 6 NY3d 592 [2006]). “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” (Costanza v. Scarlata, 188 AD3d at 1146, citing Hodgson-Romain v. Hunter, 72 AD3d 741 [2d Dept 2010]). In the case at bar, defendants demonstrated their prima facie entitlement to judgment as a matter of law. The evidence submitted in support of defendants’ motion established that defendants were not aware, nor should they have been aware, that this dog has exhibited any aggressive behavior or vicious propensities. The video shows then 88-year-old plaintiff walking with a cane when the unleashed dog jumped on his leg, causing him to fall. Plaintiff testified that prior to his accident, he never saw the dog jump on anyone. Said testimony was corroborated by defendants, who further stated in their sworn affidavits that they never observed the dog exhibit any vicious tendencies. In opposition, plaintiff fails t6 submit a Statement of Facts countering the Statement of Facts submitted by defendants, pursuant to 22 NYCRR S 202.8-g(b). Therefore, the facts contained in defendants’ Statement of Facts, namely, that defendants “did not receive any complaints and did not see the dog exhibit any signs of vicious propensity at any time before the time of the incident”, are deemed admitted by plaintiff (see NYCRR §202.8-g[c]). In any event, plaintiff fails to raise a triable issue of fact. Contrary to plaintiff’s contention, defendant, Balthazar Cajamarca’s testimony that for the safety of his granddaughter, he placed signs on the door, stating that the dog needs to be on a leash when outside, is insufficient to raise a triable issue of fact. Neither does the evidence that the dog had run out from the premises without a leash on prior occasions, warrant denial of summary judgment. The mere fact that the dog was unrestrained at the time of the incident did not raise a triable issue of fact, as ‘liability cannot be premised solely on the fact that the defendant left the dog unrestrained’” (Zelman v. Cosentino, 22 AD3d 486 [2d Dept 2005] [granting summary judgment where there was no evidence that the dog jumped on or attacked anyone prior to the accident]), citing Althoff v. Lefebvre, 240 AD2d 604 [2d Dept 1997]). Indeed, “defendant’s violation of the local leash law is ‘irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability’” (Petrone v. Fernandez, 12 NY3d 546 [2009] [granting summary judgment wherein the plaintiff was injured while running away from an unrestrained Rottweiler that had begun to chase her] [citation omitted]). Accordingly, the motion for summary judgment is granted and the complaint and cross claims are hereby dismissed against defendants. Dated: June 15, 2022
