Supreme Court, Appellate Division, First Department, New York
Smith v. City of New York
889 N.Y.S.2d 187 (N.Y.A.D. 1 Dept.,2009)
This New York appeal reversed the lower court's judgment finding Officer Smith strictly liable for dog-bite injuries sustained by infant plaintiffs. The court found that, in the limited time the officer spent with the dog, the dog acted friendly, playful, and "rambunctious." He did not see the dog growl or lunge at the plaintiff and her family, who were sitting in the precinct house. The testimony adduced at trial did not establish that Officer Smith knew or should have known of the dog's vicious propensities. Further, the court found the evidence was insufficient to show that Officer Smith owned the dog. Rather, he took temporary custody of the abandoned dog with the intention to transport him to the ASPCA, and the dog was in his possession for, at most, a few hours.
SAXE, J.P., FRIEDMAN, ACOSTA, RENWICK, ABDUS-SALAAM, JJ.
delivered the opinion of the court.
Opinion of the Court:
Interlocutory judgment, Supreme Court, Bronx County (Wilma Guzman, J.), entered January 8, 2008, upon a jury verdict in favor of plaintiff and against defendants on the issue of liability, unanimously reversed, on the law, without costs, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
The verdict finding defendants strictly liable for the dog-bite injuries sustained by the infant plaintiffs is not supported by evidence sufficient to establish that Officer Smith knew or should have known of the dog's vicious propensities ( see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993  ). In the very brief time he spent with the abandoned dog, Smith observed that the dog was friendly, playful, and “rambunctious.” Further, Smith saw plaintiff petting the dog and did not see the dog growling or lunging at any time. Indeed, plaintiff testified that the dog was playful and friendly, both to her and to a family sitting in the precinct house. Even crediting the testimony of plaintiff's husband that he saw the dog growl and lunge and that a longer rope was needed to tie the dog inside his car, that testimony does not support the inference that Smith knew or should have known of the dog's vicious propensities ( see Phillips v. Coffee To Go, 269 A.D.2d 123, 703 N.Y.S.2d 13  ).
The evidence was also insufficient to establish that Officer Smith owned the dog ( see Petrone, supra ). He had taken temporary custody of the dog with the intention to transport him to the ASPCA, and the dog was in his possession for, at most, a few hours. In any event, he had transferred any right of his to the dog to plaintiff, who had possession of the dog at the time of the attack ( see Bukhatetsky v. Vysotski, 296 A.D.2d 367, 745 N.Y.S.2d 53  ). Contrary to plaintiff's contention, the evidence showed not that she was holding the dog temporarily for Smith but that she had the right to keep the dog or give him away. Further, there was no evidence that Smith wanted the dog back or that he retained any control over the dog.
Plaintiff has no cause of action in negligence ( Petrone, supra ). In that regard, any violations by defendants of Agriculture and Markets Law § 374 and 24 RCNY 161.06 are irrelevant ( id.).