In this action, plaintiff Wayne G. Edwards seeks to recover for personal injuries he allegedly sustained as a result of an incident with defendants’ David E. Layman and Shanti D. Hariksoon’s dog. In motion sequence 001, defendants move pre-answer, pursuant to CPLR 3211 (a) (7), for an order dismissing the complaint on the grounds that it fails to state a cause of action. In motion sequence 002, plaintiff cross-moves, pursuant to CPLR 3025 (b), for an order granting leave to file an amended complaint to include two additional causes of action. Motions with sequence numbers 001 and 002 are hereby consolidated for disposition. For the reasons set forth below, plaintiff’s cross motion is granted, and defendants’ motion is granted in part and denied in part. Papers Considered NYSCEF DOC NO. 1-4; 10-15 1. Summons and Complaint 2. Notice of Motion/Affirmation of Chikodi E. Emerenini, Esq./ Exhibit A 3. Notice of Cross Motion/Affirmation of Robert A. Abiuso, Esq./Exhibits A-B 4. Reply Affirmation and Affirmation in Opposition of Affirmation of Chikodi E. Emerenini, Esq DECISION & ORDER Factual and Relevant Procedural Background Plaintiff commenced this action by filing a summons and complaint on October 13, 2022. The complaint alleges that, on December 2, 2021 at approximately 4:50 p.m., plaintiff sustained injuries when he was walking with his two leashed dogs in front of or near defendants’ home, and defendants’ dog ran out of the residence unleashed, entangling plaintiff’s dogs’ leashes, causing plaintiff to fall to the ground. Plaintiff’s complaint, grounded in negligence, states that defendants were “negligent in the ownership, operation, maintenance, management and control of the aforesaid premises and dog thereat; in failing to supervise their dog; in failing to maintain their dog on a leash as required by law….” NYSCEF Doc. No. 1, Complaint, 7. In motion sequence 001, defendants move to dismiss the complaint, stating that New York does not recognize a common law negligence cause of action to recover damages for injuries caused by a domestic animal. Defendants claim that, for a plaintiff to recover for harm caused by a domestic animal, whether it is from a dog chase or dog bite, the owner’s liability is determined solely by the application of the strict liability rule; i.e. where an owner knows of should have known of the animal’s vicious propensities. Defendants continue that, as the complaint is grounded in negligence, and plaintiff makes no allegations relative to the vicious propensities of the dog, the complaint is legally insufficient to establish liability and must be dismissed. Defendants also note that plaintiff alleges a violation of the local leash law. Although this may be some evidence of negligence, as the claim is still grounded in negligence, it is not a basis for imposing liability on the owner of a dog. See NYSCEF Doc. No. 3. In motion sequence 002, plaintiff cross-moves for leave to file an amended complaint. The amended complaint, which has been attached to the cross motion, includes a cause action alleging strict liability for vicious propensity, and a cause of action for failing to comply with local statutes and ordinances. Plaintiff argues that he “now must amend the Complaint to affirmatively and clearly state allegations of the vicious propensity of Defendants’ dog, strict liability and negligence of defendants and clarify the event which caused the Plaintiff’s injuries and damages.” NYSCEF Doc. No. 11, Abiuso affirmation in support, 13. Plaintiff also adds that the “subject dog was not on a leash, thereby violating the ‘leash law,’ as codified in the Village of Briarcliff manor. Id., 8. In support of the cross motion, plaintiff attaches an affidavit describing the incident which allegedly caused his injuries and damages. Plaintiff alleges that he was walking his two dogs when defendants’ dog escaped from the house unleashed, and ran from the entrance, “charging toward me.” Id., 5. The dog was “barking, growling, and showing his teeth.” Id. The dog “ostensibly attacked my dogs and me and knocked me down in the process. In the midst of all this confusion, my legs also got entangled in my dogs’ leashes.” Id. Plaintiff was brought to the hospital, “where x-rays revealed a displaced femoral neck fracture requiring me to undergo surgery to repair.” Id., 6. According to plaintiff, “this is not the first time [defendants' dog] got out and menaced residents in the area.” Id., 7. Plaintiff claims that defendants’ dog had previously escaped and “darted” towards plaintiff, and that defendants had “assured” him that it would not happen again. Id. Plaintiff alleges that he will be severely prejudiced if he is not allowed to amend the complaint. The court notes that, although plaintiff opposes defendants’ dismissal motion, in doing so, he uses boilerplate summary judgment language. Defendants oppose plaintiff’s cross motion to amend, to the extent that plaintiff continues to include claims grounded in negligence, and reiterate the arguments proffered in the motion to dismiss. Defendants do not oppose plaintiff’s request to amend the complaint to include a proposed cause of action for strict liability. DISCUSSION Motion Sequence 002-Cross Motion to Amend This Court will address plaintiff’s cross motion first. As a general rule, leave to amend a pleading should be freely granted in the absence of prejudice to the opposing party and where the amendment may have merit. See Davis v. South Nassau Communities Hosp., 26 NY3d 563, 580 (2015); CPLR 3025[b]; Assevero v. Hamilton & Church Props., LLC, 154 AD3d 728 (2d Dept 2017). A party seeking leave to amend a pleading need not make an evidentiary showing of merit, and leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt. Stein v. Doukas, 128 AD3d 803, 805 (2d Dept 2015); see Lucido v. Mancuso, 49 AD3d 220, 229 (2d Dept 2008). The decision whether to grant leave to amend a complaint is committed to the sound discretion of the court. Davis v. South Nassau Communities Hosp., 26 NY3d at 580; Castagne v. Barouh, 249 AD2d 257 (2d Dept 1998). Accordingly, in its discretion, plaintiff’s cross motion to amend the complaint is granted. Plaintiff has demonstrated that the amendment includes additional facts and information in support of the causes of action which may have merit. Moreover, defendants will not suffer undue prejudice or surprise as discovery has not yet begun and they have not asserted otherwise. Motion Sequence 001 — Dismissal On a motion to dismiss pursuant to CPLR 3211 (a) (7), “the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference,” and the court must determine simply “whether the facts as alleged fit within any cognizable legal theory.” Mendelovitz v. Cohen, 37 AD3d 670, 671 (2d Dept 2007). If a party elects to apply the motion to dismiss to the amended complaint which supersedes the original complaint, the motion can be considered as directed against the amended complaint. Sobel v. Ansanelli, 98 AD3d 1020, 1022 (2d Dept 2012). Here, although not explicitly stated by defendants, considering the arguments made in their papers regarding the proposed causes of action in the amendment, this Court will consider defendants’ motion as directed against the amended complaint. See e.g. Langley v. Melville Fire Dist., 213 AD3d 748, 750 (2d Dept 2023) (“Under the circumstances of this case, once the Supreme Court granted the plaintiff’s cross-motion for leave to amend the complaint [pursuant to CPLR 3025(b)], it was not erroneous for the court to consider the defendants’ motion as being directed against the amended complaint”); see also Terrano v. Fine, 17 AD3d 449, 452 (2d Dept 2005) (“The Service of the amended complaint did not render academic the respondent’s motion to dismiss, which was addressed to the merits”). Here, upon consideration of the motion to dismiss, the court agrees with defendants that the first and third causes of action in the amended complaint, which are grounded in negligence, must be dismissed for failure to state a claim. The first cause of action, negligence, alleges that the “defendants’ negligent and careless failure to keep, guard, confine and otherwise secure their vicious dog, were the actual and proximate causes of the vicious dog’s attack on plaintiff and plaintiff’s subsequent, severe and permanent injuries.” NYSCEF Doc. No. 12, Amended Complaint, 19. The Court of Appeals has held that “[w]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in [Collier v. Zambito]-i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities.” Petrone v. Fernandez, 12 NY3d 546, 550 (2009) (internal quotation marks and citations omitted). Case law establishes that “[v]icious propensities” are not only limited to biting or attacking, per se, but “include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.” Murga v. Yarusso, 215 AD3d 979, 980 (2d Dept 2023); See e.g. Egan v. Hom, 74 AD3d 1133, 1133 (2d Dept 2010) (Lower court erred by not granting summary judgment dismissing cause of action alleging common law negligence when plaintiff allegedly sustained injuries when she became entangled in the dog’s chain, which was attached to a dog runner, “while the dog was ‘running around’ the defendants’ yard”). Accordingly, here, even accepting the allegations of the complaint as true, plaintiff cannot recover under a theory of negligence, “as New York does not recognize a common-law negligence cause of action to recover for damages for an owner’s alleged negligence in the handling of a dog.” Murga v. Yarusso, 215 AD3d at 980. Similarly, the third cause of action alleging that defendants failed to comply with the local “leash law,” must also be dismissed. See Petrone v. Fernandez, 12 NY3d at 550 (internal quotation marks and citations omitted) (“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 [when harm is caused by a domestic animal]“). With respect to the second cause of action in strict liability, “the owner of a domestic animal who either knows of 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 NY3d 444, 446 (2004). Based on the allegations that defendants’ dog had vicious propensities and that the defendants were aware of these propensities, plaintiff has sufficiently pled a cause of action in strict liability. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss. Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 589 (2d Dept 2014). Accordingly. defendants’ motion is denied with respect to that cause of action. Accordingly, it is hereby ORDERED that plaintiff Wayne G. Edwards’ cross motion for leave to amend his complaint pursuant to CPLR 3025(b) (motion sequence no. 002) is granted; and it is further ORDERED that plaintiff’s verified amended complaint, properly executed, shall be filed to NYSCEF within ten days of the date of this Decision & Order, and defendants’ answer to the verified amended complaint shall be filed to NYSCEF within ten days of the filing of the verified amended complaint. ORDERED that defendants’ motion to dismiss the amended complaint pursuant to CPLR 3211(a) (7) (motion sequence no. 001), is granted to the extent of dismissing the first and third causes of action in the amended complaint, and the remaining claim grounded in strict liability is severed and shall continue. The parties are directed to appear for a virtual compliance conference on __________________ subject to confirmation by the virtual conference link emailed by this Court. Dated: June 1, 2023
