SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
83
CA 16-00571
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
NANCY J. BRADY AND PATRICK J. BRADY,
PLAINTIFFS-RESPONDENTS,
V MEMORANDUM AND ORDER
TIMOTHY J. CONTANGELO, DEFENDANT-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (JENNIFER J. PHILLIPS OF COUNSEL), FOR
DEFENDANT-APPELLANT.
LAW OFFICE OF FRANCIS M. LETRO, BUFFALO (CAREY C. BEYER OF COUNSEL),
FOR PLAINTIFFS-RESPONDENTS.
Appeal from an order of the Supreme Court, Niagara County (Mark
Montour, J.), entered December 29, 2015. The order denied the motion
of defendant to dismiss the complaint and for summary judgment
dismissing the complaint.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the second and third causes of action, and as modified the
order is affirmed without costs in accordance with the following
memorandum: Plaintiffs commenced this action seeking to recover
damages for injuries allegedly sustained by Nancy J. Brady (plaintiff)
when defendant or the leashes attached to his two dogs knocked her
over during a walk in a park. Defendant moved to dismiss the
complaint pursuant to CPLR 3211 (a) (7) and sought summary judgment
dismissing the complaint, and he contends on appeal that Supreme Court
erred in denying that part of his motion seeking summary judgment
dismissing the complaint.
We conclude that the court properly denied that part of
defendant’s motion with respect to the first cause of action, alleging
that defendant was negligent in running into plaintiff. When human
bodies collide, a defendant may be liable under common-law negligence
principles for failing to control his or her speed or movement in the
vicinity of another (see generally Moore v Hoffman, 114 AD3d 1265,
1266). Although both dogs and humans allegedly were involved in this
collision, it is well settled that “ ‘there may be more than one
proximate cause of an injury’ ” (Mazella v Beals, 27 NY3d 694, 706;
see Honer v McComb, 126 AD3d 1555, 1556). Here, defendant failed to
meet his burden of establishing as a matter of law that he was free of
negligence in controlling his own body (see generally Winegrad v New
York Univ. Med. Ctr., 64 NY2d 851, 853).
-2- 83
CA 16-00571
We agree with defendant, however, that the court erred in denying
that part of his motion with respect to the second cause of action,
based upon his alleged negligent handling of dogs, and we therefore
modify the order accordingly. As plaintiff correctly concedes, “a
cause of action for ordinary negligence does not lie against the owner
of a dog that causes injury” (Antinore v Ivison, 133 AD3d 1329, 1329;
see Doerr v Goldsmith, 25 NY3d 1114, 1116).
We also agree with defendant that the court erred in denying his
motion with respect to the third cause of action alleging strict
liability based upon the dogs’ vicious propensities, and thus we
further modify the order accordingly. It is well established that “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” (Collier v Zambito,
1 NY3d 444, 447; see Ioveno v Schwartz, 139 AD3d 1012, 1012, lv denied
28 NY3d 905; Dickinson v Uschold, 11 AD3d 1036, 1037). In contrast,
“normal canine behavior” such as “barking and running around” does not
amount to vicious propensities (Collier, 1 NY3d at 447; see Bloom v
Van Lenten, 106 AD3d 1319, 1321). We conclude that defendant met his
initial burden of establishing that he lacked knowledge of any vicious
propensity on the part of either dog that gave rise to the injury and,
in opposition, plaintiff failed to raise an issue of fact. Although
defendant testified that one dog used to jump on people when he was
younger and had been hostile with his veterinarian, there is no
evidence that defendant’s dogs jumped on plaintiff, made contact with
her body, or otherwise acted hostilely toward her. To the contrary,
plaintiff testified that the dogs ran toward her and caused a
collision between plaintiff and defendant that knocked plaintiff to
the ground. In our view, such an act constitutes normal canine
behavior, and thus plaintiff failed to present evidence of a known,
vicious propensity that “result[ed] in the injury giving rise to the
lawsuit” (Collier, 1 NY3d at 447; see Bloom, 106 AD3d at 1321).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court