The following e-filed documents for Motion Sequence 02, listed by NYSCEF document numbers “25,” “26,” “27,” “28,” “40,” “43,” and attachments and exhibits have been read on this motion: Notice of Motion and Affidavits/Affirmations X Affidavits/Affirmation in Opposition X Memorandum of Law in Reply X The defendants move this Court by way of Notice of Motion for an order granting them summary judgment pursuant to CPLR §3212 and dismissing all crossclaims and counterclaims. The plaintiff opposes the motion. The defendants submit a reply. The plaintiff initiated this action for personal injuries sustained on March 13, 2020 as the result of an incident that involved a dog. The plaintiffs claim that the defendants own a large dog named “Bernie,” who they allegedly allowed to become loose on Abbey Lane, Levittown, New York, where the defendants own a home, despite knowing that Bernie had vicious propensities. According to the plaintiff’s Verified Bill of Particulars, the plaintiff was riding his bicycle when Bernie allegedly attacked the plaintiff knocking the plaintiff off his bicycle. This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. (Andre v. Pomeroy, 35 N.Y.2d 361). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff. (Makaj v. Metropolitan Transportation Authority, 18 A.D.3d 625). The motion court is required to accept the opponents’ contentions as true and resolve all reasonable inferences in the manner most favorable to the opponents. (Giraldo v. Twins Ambulette Serv., Inc., 96 AD3d 903). The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Zuckerman v. City of New York, 49 N.Y.2d 557). Once the movant makes its prima facie showing, the burden shifts to the opponent, who must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial. (Id.). 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. (Xin Kai Li v. Miller, 150 AD3d 1051, 1051). As such, “[t]he sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability.” (Elardi v. Morales, 192 A.D.3d 1074, 1074). “[T]he 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.” (Costanza v. Scarlata, 188 A.D.3d 1145, 1146). “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. 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.” (King v. Hoffman, 178 A.D.3d 906, 909). At the outset, the defendants argue that the plaintiff’s cause of action alleging ordinary negligence should be dismissed as this matter involves an injury inflicted by domestic animal. As provided above, a cause of action for common law negligence cannot lie against a defendant for damages caused by a domestic animal. (Xin Kai Li, 150 AD3d at 1051). Since the Verified Complaint alleges that the accident and the plaintiff’s resulting injuries were due to the defendants’ dog Bernie and their negligence concerning same, the defendants have established prima facie entitlement as a matter of law. (Id.; Alvarez, 68 N.Y.2d at 320; Zuckerman, 49 N.Y.2d at 557). The plaintiff does not oppose the plaintiff’s contentions and, as such, fails to raise a material issue of fact. (Id.). Accordingly, the plaintiff’s cause of action sounding in common-law negligence should be dismissed. With respect to the plaintiff’s claims grounded in strict liability, the defendants argue that there is no evidence in the record that the defendants’ dog Bernie exhibited vicious propensities or that the defendants should have known Bernie had vicious propensities. In support of their contentions, the defendants rely on the deposition testimony of the plaintiff and each of the defendants. According to the plaintiff’s testimony, the plaintiff was riding home from the post office on his bicycle without a helmet in the middle of the roadway on Abbey Lane near Abbey Lane School at the time of the accident. The plaintiff first saw the dog alleged to be Bernie on the opposite side of the street when the plaintiff was halfway past Abbey Lane School. The dog alleged to be Bernie was about fifteen yards away from the plaintiff and there were no other persons or animals with the dog at issue. The plaintiff describes the dog alleged to be Bernie as a “black dog with a big head” who the plaintiff thought was a “rottweiler” because “that’s the only big-headed dogs [the plaintiff] know[s].” When the subject dog advanced toward the plaintiff, the plaintiff slowed his bike down and moved to the right. The plaintiff does not recall if the dog was barking, growling, or baring its teeth when it was coming towards the plaintiff. In addition, the plaintiff does not remember the contact with the dog alleged to be Bernie because he was “knocked unconscious.” The plaintiff testified that he did not know where the dog at issue came from or who it belonged to and was not aware of any other incidents involving the dog. The plaintiff also stated that he was never told that he had any wounds consistent with a dog bite or puncture. Defendant Joseph Priole (“Priole”) testified that he as lived in his home since 2013 with defendant Barbara T. Furey (“Furey”) and their daughter. At the time of the accident, the defendants’ dog, Bernie, a Rottweiler Shepperd mix, also lived with the defendants. When the defendants initially moved into their home, they had another dog that died before they purchased Bernie. Priole denied that Bernie was the dog that struck the plaintiff’s bike because he and his family were inside their home while Bernie was in their backyard at the time of the accident. Priole became aware of the incident at issue when he heard commotion outside. Priole went outside and saw a man and a bicycle on the ground surrounded by people who indicated that the dog involved in the accident ran down the street. Priole also stated that he is unaware of any incidents involving Bernie that occurred prior to the plaintiff’s accident. Furey confirmed that she and Priole purchased their home, which is located across from Abbey Lane School, in 2013. Furey testified that their home has a “Beware of Dog” sign on their property, which was there from the time they purchased the property because the defendants had other dogs before Bernie. As to Bernie, Furey stated that he is always taken on walks with a leash, plays outside in their yard or at the dog park. Furey stated that the backyard is fenced in, and Bernie has never gotten loose or gotten out of their yard. In addition, Bernie has never had any prior biting incidents, he has never bared his teeth or growled at people or strangers and does not really react to people knocking on their door. Furey learned about the plaintiff’s accident later in the day from Priole and never spoke to anyone regarding the plaintiff’s accident. Based on the parties’ testimony, the defendants have met their initial burden of demonstrating prima facie entitlement to judgment as a matter of law by submitting evidence showing that Bernie had never previously done any act that might endanger the safety of the person or property of another. (King, 178 A.D.3d at 909). The plaintiff, in opposition, relies on the testimony of Nicole Leshinsky, a non-party witness to the accident and Craig Leshinsky, who arrived after the accident. The plaintiff argues that Ms. Leshinsky’s testimony that she witnessed Bernie run out and hit the wheel of the plaintiff’s bike coupled with the defendants’ testimony regarding the presence of a fence and “Beware of Dog” sign on their property establishes that Bernie’s vicious propensity. According to the plaintiff’s argument, Ms. Leshinsky testified that on the day of the accident she was walking her two small dogs on the opposite side of the street of the defendants’ home. Ms. Leshinsky observed the dog alleged to be Bernie running unleashed back and forth in front of the defendants’ home and then run ran across the street towards the plaintiff. When the subject dog reached the plaintiff, the dog ran into the wheel of the plaintiff’s bike causing the plaintiff to fall to the floor. Ms. Leshinsky was “very scared” and thought the subject dog might attack her since she was with two small dogs. After running into the wheel of the plaintiff’s bicycle, the dog alleged to be Bernie kept running around. Ms. Leshinksky also stated that she was asked for her contact information by the dog’s owner, who emerged from the house identified as the defendants’ home. However, Ms. Leshinksky’s testimony also provides that she could not explain what the dog alleged to be Bernie looked like and could not affirmatively identify Bernie from the photographs presented during her deposition. While Ms. Leshinksky saw the dog in question running around unleashed before the accident, she did not remember seeing anyone collect the subject dog after the plaintiff’s accident. Ms. Leshinksky indicated that she never saw the dog in question before or after the plaintiff’s accident. In addition, Ms. Leshinksky testified that she feared the dog alleged to be Bernie because it was big, fast, and scary, but confirmed that the dog was not barking. It is well settled that “normal canine behavior, such as running around, pulling on a leash and barking at another dog or passersby, barking at strangers, or chasing animals, will not support a finding of knowledge of vicious propensities.” (Brooks v. Adell, 211 AD3d 792, 793). Assuming the dog at issue is Bernie, Ms. Leshinksky’s testimony that Bernie was running back and forth unleashed merely establishes that Bernie was engaging in normal canine behavior rather than a vicious propensity. (Id.). Moreover, considering Ms. Leshinksky never saw Bernie prior to the subject accident and her observations were contemporaneous with the accident, Ms. Leshinksky’s testimony is insufficient to raise an issue of fact as to whether the defendants knew or should have known of Bernie’s vicious propensities. (Costanza, 188 A.D.3d at 1146). The Court is also not persuaded by the plaintiff’s argument that the presence of a fence and a “Beware of Dog” sign establishes Bernie’s vicious propensity. Priole testified that he posted the sign and erected the fence after he and Furey purchased the property in 2013 because they had other dogs before Bernie. However, the posting of a sign and the presence of a fence, without more, is insufficient to raise a material issue of fact. (Sers v. Manasia, 280 AD2d 539, 540; Vallejo v. Ebert, 120 AD3d 797, 798). Neither the plaintiff, the defendants nor Ms. Leshinksky testified that the fence and sign were present due to Bernie’s vicious behaviors. The plaintiff also does not offer documentary evidence showing that, at the very least, the fence was erected after the defendants came to own Bernie. Since there is nothing in the record establishing that the sign was posted and the fence was erected by the defendants in response to Bernie’s prior vicious acts, the plaintiff’s arguments are based on sheer speculation. (Brooks, 211 AD3d at 793). Therefore, the plaintiff has failed to raise a material issue of fact requiring trial and a finding of summary judgment is warranted under these circumstances. (Alvarez, 68 N.Y.2d at 320; Zuckerman, 49 N.Y.2d at 557). Based upon the foregoing, it is hereby ORDERED, that the defendants’ motion (Motion Sequence 02) for order granting them summary judgment pursuant to CPLR §3212 and dismissing all crossclaims and counterclaims is granted. The foregoing constitutes the Order of this Court. Dated: June 27, 2023
