Barone v. Phillips

Gorski, J. (dissenting).

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 [2004]). 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 *1525884 [2003]). 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. Present—Smith, J.P., Centra, Peradotto, Gorski and Martoche, JJ.