Lewis v. Lustan

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J), entered December 10, 2008 in a personal injury action. The order granted defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from is reversed on the law without costs, the motion is denied and the complaint is reinstated. Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained while walking her dog by defendants’ residence. Defendants’ unleashed dog emerged from behind a car, barking. The dog ran toward plaintiff, startling her, whereupon she lost her balance and fell. We agree with plaintiff that Supreme Court erred in granting defendants’ motion for summary judgment dismissing the complaint. Defendants’ own submissions in support of the motion' raise a triable issue of fact whether defendants’ dog had vicious propensities and, if so, whether defendants knew or should have known of those propensities (see generally Collier v Zambito, 1 NY3d 444, 446 [2004]). “[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 1487 only when such proclivity results in the injury giving rise to the lawsuit” (id. at 447). “A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendants liable for damages resulting from such an act” (Anderson v Carduner, 279 AD2d 369, 369-370 [2001] [internal quotation marks omitted]; see Pollard v United Parcel Serv., 302 AD2d 884 [2003]). Here, we conclude that the deposition testimony of defendants that their barking dog rushed toward cars and people on numerous occasions prior to the incident with plaintiff raises a triable issue of fact to defeat the motion (see Pollard, 302 AD2d at 884-885). All concur except Smith, J.P., and Pine, J., who dissent and vote to affirm in the following memorandum.