Vitrella v. Rodrigues

Oct 14, 2004
Versions:11 A.D.3d 287
783 N.Y.S.2d 535
2004 N.Y. App. Div. LEXIS 11939

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 13, 2003, which granted defendants’ motion for summary judgment dismissing the amended complaint, unanimously affirmed, without costs.

Plaintiff Maria Vitrella claims to have been injured as she walked with her sister past defendants’ house, when defendants’ small dog jumped up in front of her, causing her to back away, trip and strike her head on the ground. The dog had been tethered on a 15-foot chain in a fenced-in yard, but slipped its leash and ran out when one of defendants opened the gate, just as the women were passing by.

The claim for strict liability was correctly dismissed. While the dog was known to bark frequently, there was no evidence of any “vicious propensit[y]” (Carter v Metro N. Assoc., 255 AD2d 251, 251 [1998]). Absent such evidence, plaintiffs’ negligence claim had to be based on a distinct act that the defendant should have done or refrained from doing in the particular circumstances or some distinct enhanced duty (Schwartz v Erpf Estate, 255 AD2d 35, 38 [1999], lv dismissed 94 NY2d 796 [1999]. There is no such showing here. Based on the record presented, we find the New York City Leash Law inapplicable. Concur—Mazzarelli, J.P., Sullivan, Friedman, Gonzalez and Catterson, JJ.