SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

474 

CA 10-02362 

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. 

 

ROBERT J. BARONE AND DONNA BARONE, 

PLAINTIFFS-RESPONDENTS,

V MEMORANDUM AND ORDER

SUSAN RAYNOR PHILLIPS, ALSO KNOWN AS SUSAN 

RAYNOR, ALSO KNOWN AS SUSAN WATKINS, ALSO 

KNOWN AS SUSAN PHILLIPS, AND PATRICK PHILLIPS, 

DEFENDANTS-APPELLANTS. 

 

BARTH SULLIVAN BEHR, BUFFALO (ANDREW J. KOWALEWSKI OF COUNSEL), FOR

DEFENDANTS-APPELLANTS.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Chautauqua County

(James H. Dillon, J.), entered October 8, 2010 in a personal injury

action. The order denied the motion of defendants for summary

judgment. 

It is hereby ORDERED that the order so appealed from is reversed

on the law without costs, the motion is granted and the complaint is

dismissed. 

Memorandum: Plaintiffs commenced this action seeking damages for

injuries sustained by Robert J. Barone (plaintiff) while attempting to

run away from a dog allegedly owned and/or harbored by defendants, who

were plaintiffs’ neighbors. According to plaintiffs, the dog was

barking and ran directly from defendants’ property toward plaintiff on

his property. Plaintiff believed that the dog would bite him and

therefore ran to his house, but in doing so he tripped over the

threshold of his front door and injured his knee. We agree with

defendants that Supreme Court erred in denying their motion for

summary judgment dismissing the complaint. It is well settled 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 propensities” (Collier v

Zambito, 1 NY3d 444, 446; see Petrone v Fernandez, 12 NY3d 546, 550). 

“[A]n 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” (Collier, 1 NY3d at
-2- 474 

CA 10-02362 

447 [emphasis added]).

Here, defendants met their initial burden by establishing that

they had no knowledge of any vicious propensity on the part of their

dog, i.e., they had not seen their dog chasing any person on any

occasion, nor had they heard of any such event (see Rose v Heaton, 39

AD3d 937, 938). In response, plaintiffs presented no evidence

suggesting that the dog had a propensity to run at people and thus

failed to raise a triable issue of fact to defeat the motion (see

Pollard v United Parcel Serv., 302 AD2d 884, 884; cf. Lewis v Lustan,

72 AD3d 1486, 1487). To the extent that plaintiffs presented evidence

that the dog had propensities to engage in other behavior that might

endanger people, we conclude that such evidence was insufficient to

raise an issue of fact to defeat the motion because those propensities

did not “result[] in the injury giving rise to the lawsuit” (Collier,

1 NY3d at 447; see Farnham v Meder, 72 AD3d 1574, 1576).

All concur except GORSKI, J., who dissents and votes to affirm in

the following Memorandum: I respectfully dissent because, in my view,

Supreme Court properly denied defendants’ motion for summary judgment

dismissing the complaint. As noted by the majority, plaintiffs

commenced this action seeking damages for injuries sustained by Robert

J. Barone (plaintiff) when he fell while being chased by a barking dog

allegedly under the control of defendants. As the majority correctly

states, defendants may be held liable for the harm caused by the dog

if they knew or should have known of the dog’s vicious propensities,

and those propensities resulted in the injury giving rise to this

action (see Collier v Zambito, 1 NY3d 444, 446-447). Evidence of a

vicious propensity, however, is not limited to dangerous or ferocious

behavior, but such evidence also includes “a proclivity to act in a

way that puts others at risk of harm” (id. at 447), including a known

tendency to attack or to jump up on others, even in playfulness (see

Pollard v United Parcel Serv., 302 AD2d 884). In opposition to

defendants’ motion, plaintiffs submitted evidence that the dog

previously had knocked down a small child in the presence of defendant

Patrick Phillips, and had a history of being “wild” and running onto

plaintiffs’ property, resulting in multiple complaints from plaintiff

to city officials. Thus, contrary to the conclusion of the majority,

plaintiff presented evidence sufficient to raise a triable issue of

fact whether defendants had knowledge that the dog had a propensity to

act in a manner that gave rise to plaintiff’s injuries. 

Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court