Emily Smith, Claimant, v. The State of New York, Defendant. (2025)

This claim was brought on behalf  ¹ of Claimant, Emily Smith for a serious injury she suffered on May 14, 2018, when she was bitten by a New York State Police canine assigned to her father, New York State Trooper Shaun Smith. Claimant testified on her own behalf and called three witnesses: Trooper Shaun Smith, retired New York State Police Sergeant, Douglas John Colwell, and Claimant's mother, Elizabeth Williams.² This decision relates solely to the issue of liability.

New York State Trooper Shaun Smith (Trooper Smith) was Claimant's first witness.³ Trooper Smith has been an employee of the New York State (NYS) Police since February 14, 2005. Since 2018 he has been assigned to the Traffic Incident Management (TIM) detail. In this position he is responsible for traffic enforcement in construction zones, highways, and traffic accidents. Prior to this position, Trooper Smith worked approximately six years as a K-9 handler. During his tenure he was assigned three K-9 partners, Doyle, Will, and Garret. Doyle, although retired from the NYS Police, remained with the family as their pet. K-9 Will was killed in the line of duty. After K-9 Will's death, K-9 Garret was assigned to Trooper Smith on November 2, 2017. Trooper Smith brought K-9 Garret to his residence on November 3, 2017, and it is this dog that is the subject of this action.

When a trooper is assigned a new dog, training is scheduled. Sometimes the history of the new dog is unknown, so it is the job of the trooper to get to know the dog and socialize it. Trooper Smith testified that socializing involved "working [K-9 Garret] into our model, very basic, very basic stuff, because we had not been assigned a date yet to go [to formal training]".⁴ The goal is to "get the dog used to being with you, with the family, where it's going to live, you know, where it's going to, you know, work".⁵ He further described socializing as getting the dogs to be approachable and able to work with the public. K-9 Garret was a Belgian Malinois and Trooper Smith thought that he was about two years old at the time. Trooper Smith kept K-9 Garret's kennel in the basement of the family home, a practice he had undertaken with his prior K-9 partners. Trooper Smith indicated that after a week or so his other K-9s were living with the family upstairs. K-9 Garret however never moved from his kennel in the basement because he did not adjust well. According to Trooper Smith, K-9 Garret was not an approachable happy dog like his other dogs, although after K-9 Garret finished his formal training, he seemed happy at home. With new people K-9 Garret continued to exhibit signs of aggression such as snarling, barking, or growling, especially at the Troop D monthly training.

On November 28, 2017, Trooper Smith in a response to an email sent by Technical Sergeant Douglas Colwell (Sergeant Colwell) regarding forms and other work information, advised the Sergeant that K-9 Garret was "not a house dog and has to stay in his kennel. He has bitten my wife once and [does] not like her. My kids for the most part don't go around him. He has made progress but still fears new people and reacts by wanting to bite them".⁶ Sergeant Colwell responded that "[m]ost of our new canines are not family pets and need to be treated as such. Do you need a crate for the house, I may have one here that we can send/loan you".⁷ Trooper Smith declined Sergeant Colwell's offer and stated that he was all set with a kennel.

The following day, Wednesday, November 29, 2017, Sergeant Colwell emailed Trooper Smith to ask if he was able to safely handle K-9 Garret, and whether his family was willing to have him live at their residence. Trooper Smith responded that he had no issues handling K-9 Garret, but he has to be watched closely when approaching people. Trooper Smith also stated, "[m]y family really [doesn't] have anymore interactions with him. My basement is large enough for him to be kenneled in my gym. If the wife and kids want to use the gym he goes in the car. As for them not wanting him to not be in our house. They support my wanting to be a K9 handler. But they also wish they could interact with the dog. They and I understand he's not a pet just like the other two that have lived at my house".⁸ Sergeant Colwell, in the next email, re-asked the initial two questions and requested Trooper Smith respond with a simply "yes" or "no". Trooper Smith responded "yes" to both questions.

Trooper Smith described what occurred prior to K-9 Garret biting at his wife, stating that "we had finished our day, we're coming in and I am taking my boots off at the front of my door right where my foyer is. And my wife at the time came in to greet us and he just decided to grab her sleeve".⁹ The dog did not snarl or growl before he bit her sleeve. His wife was not injured, "[s]he had a sweatshirt on and he got a hold of the sleeve".¹⁰ Trooper Smith did not file a formal report about this biting incident, although he did mention it, as noted, in the emails to Sergeant Colwell.

Trooper Smith also testified about what he meant when he told Sergeant Colwell that despite K-9 Garret making progress he "still fears new people and reacts by wanting to bite them".¹¹ Trooper Smith described attending training days with K-9 Garret, where there were many K-9 handlers together, and when they would go to meet K-9 Garret, his first reaction was to try to bite them. However, K-9 Garret did not actually bite anyone. Trooper Smith was asked about other times that K-9 Garret had acted aggressively prior to May 14, 2018, and he testified that K-9 Garret had behaved aggressively "[m]ostly on training day where we would work the socialization with him, he would lash out."¹²

In December 2017, Trooper Smith and K-9 Garret attended formal training in Cooperstown, New York. The training lasted approximately four and a half months, ending sometime in April 2018. After completing the program K-9 Garret became a full-service K-9 partner.

In May 2018, leading up to the day that Claimant was injured, Trooper Smith and his family took a trip to Washington, D.C. K-9 Garret was boarded with their local veterinarian clinic, Liverpool Animal Health Center for more than five days. On May 14, 2018, after Trooper Smith picked K-9 Garret up early from the clinic,¹³ he testified that he appeared to be having a good day, he played ball and was roaming around interacting with Trooper Smith's other dog, Doyle. When K-9 Garret first arrived back at the house, Claimant and her brother were still asleep. Around midday, Claimant woke up. At that time Trooper Smith was upstairs and saw K-9 Garret's tail wagging when he saw Claimant. After a minute or so, Trooper Smith went in the basement, he was getting K-9 Garret's kennel area ready. K-9 Garret went downstairs with Trooper Smith and Doyle, when he heard Claimant call for K-9 Garret. Trooper Smith testified that this was not unusual. Approximately 20 seconds later Trooper Smith stated his then wife screamed his name, and he quickly ran upstairs. Upon arriving upstairs, he observed Claimant "sitting at the table with a napkin on her head saying, 'It's okay, it's okay' ".¹⁴ His then wife said K-9 Garret had bitten Claimant. Trooper Smith saw the bite above Claimant's right eye, and that it was "quite severe . . . I could see into her skull".¹⁵ Trooper Smith immediately called the paramedics and notified his supervisor, Trooper Eric Napp. Trooper Smith testified he prepared a memo at the request of his supervisors detailing the event. Inquiry was made into whether there had been any investigations or actions undertaken by the New York State Troopers with Trooper Smith post incident and Defendant's counsel objected. The Court permitted the testimony subject to arguments in counsels' post-trial briefs. Upon further review, the Court has not considered the testimony on this issue and sustains Defendant's objection (Alfieri v Carmelite Nursing Home, Inc. 29 Misc 3d 509, [Civil Ct, Richmond County 2010] [post-incident retraining actions not admissible, similar to the exclusion of remedial action or repairs]; see also, Reyes-Nunez v State of New York, 66 Misc 3d 728 [Ct Cl 2019] [corrective actions required in accident report not discoverable]).

The Court permitted the admission of Exhibit 11, the records from the vet clinic for K-9 Garret's stay, solely for the purpose of notice to Trooper Smith that he had to pick K-9 Garret up early because he was anxious at the vet and had bitten a vet worker. This was not offered for the truth of whether K-9 Garret had actually bitten anyone, but solely as notice that this is what Trooper Smith was told as the reason to pick up the dog (see, Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, 392 [2d Dept 2001] [fall on oil, allowed plaintiff's testimony that before she fell she overheard a customer tell employee jar broke or was leaking permitted to be used for notice although declarant was unknown and statement not offered for truth of facts]; Stern v Waldbaum, Inc., 234 AD2d 534, 534 [2d Dept 1996] [slip and fall on spill of liquid soap, where announcement made before fall directing an employee to clean spill, allowed public announcement to be admitted because not offered for truth but only that statement was made and those that heard statement could be cross-examined]).

At the start of cross-examination, the issue of whether Trooper Smith, although an employee of the State, was a hostile witness who could be impeached by Defendant with a prior inconsistent statement was extensively argued at trial and in the post-trail briefs. Although a State employee, Trooper Smith was not called as a State witness.¹⁶ Trooper Smith has a pending action against the State of New York for employment actions following the incident that is the subject of this claim and Trooper Smith has personal counsel for that action. Claimant argues that since Defendant had Trooper Smith listed as a potential witness, and he is employed by the State it cannot impeach his credibility. After consideration of the arguments, the Court finds that Defendant is entitled to impeach Trooper Smith with his deposition testimony, in accordance with CPLR 4514, which permits "any party [to] introduce proof that any witness has made a prior statement inconsistent with the testimony if the statement was made in a writing subscribed by him or was made under oath (CPLR 4514 [emphasis added]). The Court did not find Trooper Smith to be a hostile witness (see generally, Potter v Browne, 197 NY 288, 293 [1910]; People v Wheeler, 203 AD3d 1330, 1330 n 4 [3d Dept 2022]; Hutchinson v Shaheen, 55 AD2d 833 [4th Dept 1976]).

On cross-examination, Trooper Smith described his ability as a canine handler to be "very good".¹⁷ He stated during his six-year tenure as a K-9 handler he had received training involving "obedience of the dog, the detection of the dog, handler protection of the dog, tracking abilities for the dog and . . . cadaver searching with the dog".¹⁸ Trooper Smith described the process to become a K-9 handler as very competitive and challenging; out of five thousand troopers statewide, there were only about one hundred K-9 handlers. Trooper Smith agreed that he was an experienced K-9 handler.

Trooper Smith advised that K-9 Garret lived with the family approximately seven months prior to this incident. At that time Trooper Smith, his then wife, Claimant, his son Joshua, and his mother Jana were living in the household. There were also two other dogs, Jana's dog Bo, and Trooper Smith's first K-9, Doyle. Trooper Smith affirmed that K-9 Garret completed his training to become a certified working partner. Trooper Smith described K-9 Garret's performance at the training center, as "sub-par", a characterization that contradicted his deposition testimony where he described K-9 Garret's behavior as "very good at the training center".¹⁹ Trooper Smith also testified that his local K-9 supervisor was Trooper Napp, and he had told him about K-9 Garret's nipping at his wife. Trooper Smith testified that Trooper Napp would have also been present for some of K-9 Garret's behavioral issues at the monthly local trainings.

On Monday through Friday from 7:00 a.m. until approximately 3:00 p.m., K-9 Garret would be working with Trooper Smith away from the house. Although K-9 Garret was kenneled in the basement of the home at times when Trooper Smith was not at home, K-9 Garret was permitted to roam freely about the house. Trooper Smith emphasized that socialization was the key to integrating the dog into the family unit, which was the NYS Police K-9 model. According to Trooper Smith, "you want to socialize the dog, you want the dog to know that when he's coming home, that's where he lives, that he's happy to be home, that he's integrated with the family and part of doing that is that he sees everybody in the family".²⁰ Trooper Smith was again asked about the day that K-9 Garret nipped at Trooper Smith's then wife. He described how his wife had met them at the door when they arrived home. Trooper Smith did not recall K-9 Garret growling before he nipped at Ms. Williams. K-9 Garret did not make any contact with the wife's skin, and there was no injury. After the incident Trooper Smith testified that his then wife was not worried or concerned about the dog, neither of them understood why K-9 Garret had reacted that way. Trooper Smith corrected the dog, and the family went on with the evening. This occurred before K-9 Garret and Trooper Smith went for formal training.

Turning to May 2018, the day of Claimant's injury, Trooper Smith recalled that K-9 Garret was boarded at the vet clinic while the family went on vacation. When Trooper Smith picked up K-9 Garret, around 9:00-9:30 a.m., he indicated the dog seemed happy, his tail was wagging. Trooper Smith testified that when he brought K-9 Garret home after being boarded he did not just put him in the basement. Trooper Smith stated "[y]ou work the model . . . [w]e brought him home, let him relax . . . he should be happy to be home. And we played, my then wife [and I], we played catch with [K-9 Garret]. He interacted with [K-9] Doyle. We were having a pretty good day, actually".²¹

According to Trooper Smith, Claimant woke up at around 11:30 a.m. walked down from upstairs to where he, his then wife, and K-9 Garret and Doyle were present. Trooper Smith described the interaction between K-9 Garret and Claimant as "fine", "he was happy to see her—tail was wagging, normal. You know, he's used to her. You know, he didn't — he wasn't growling and he wasn't mad so . . . .".²² Claimant greeted K-9 Garret, and Trooper Smith went downstairs to get K-9 Garret's kennel ready, and both dogs followed him downstairs. After a couple of minutes Claimant called for K-9 Garret, Doyle stayed downstairs. Then Trooper Smith recalled his former wife, yelling for him to come upstairs.

Trooper Smith conceded that at that time K-9 Garret was no longer aggressive toward familiar things, and he was not concerned with him being aggressive at home. He was a trained dog. Trooper Smith acknowledged he was not concerned about K-9 Garret being dangerous; and he would not have allowed the dog to roam freely in his house with his family if he was seriously concerned about K-9 Garret's aggressiveness at home. He did not expect K-9 Garret to bite Claimant because he had never been aggressive towards her. He stated that Claimant would often give K-9 Garret hugs, and that K-9 Garret would put his paws on her shoulders and kiss Claimant, by licking her face. Trooper Smith denied that K-9 Garret would sit on the couch with his wife and Claimant or jump up on Claimant on the couch. Trooper Smith asserted that before K-9 Garret was trained, he had warned Claimant and his family about K-9 Garret's potential dangerousness but did not renew those warnings after K-9 Garret completed the formal training. Trooper Smith was shown excerpts of his deposition testimony that contradicted the testimony he just gave.²³ After reviewing his deposition testimony he acknowledged that prior to May 2018, he had no conversations with Claimant about K-9 Garret or how she should interact with him.

Trooper Smith confirmed informing Sergeant Colwell on November 29, 2017, that he was able to safely handle K-9 Garret, and that his family was willing to have K-9 Garret live at their residence.

On redirect in reviewing Trooper Smith's deposition testimony, he had testified that K-9 Garret's performance as a New York State Police K-9 was "subpar".²⁴ It was also brought out that Trooper Smith had testified that he was very cautious about K-9 Garret around the family and not just focused upon the socialization of the dog. Trooper Smith testified that he had seen K-9 Garret try to bite other K-9 handlers more than once.

On recross-examination Trooper Smith testified he was careful socializing K-9 Garret because of concerns he had regarding his ability to interact with the public. However, he conceded that K-9 Garret had never bitten anyone, other than his former wife, and the other incidents of aggression occurred at the training center. He also acknowledged that he would not have allowed K-9 Garret to run freely around the house if he had serious concerns about his aggression.

Claimant called Sergeant Douglas Colwell (Sergeant Colwell)²⁵ as her next witness. Sergeant Colwell recalled that K-9 Garret was assigned to Trooper Smith in November 2017. He reviewed the email he received dated November 28, 2017,²⁶ from Trooper Smith, informing that K-9 Garrett had issues with ringworm, and had bitten his then wife whom K-9 Garret did not like. He also acknowledged Trooper Smith's statement that K-9 Garret "has made progress but still fears new people and reacts by wanting to bite them".²⁷

Sergeant Colwell acknowledged he was "a little concerned"²⁸ about hearing that the dog had bitten his wife. Sergeant Colwell testified that after receiving the email, he called Trooper Smith about this and was told that the dog had just nipped at his wife. I said, "you know, if the dog bites somebody, you gotta let us know, you gotta call your supervisor in Troop D, then call us out here in Cooperstown to inform us that there was a bite".²⁹ Trooper Smith assured Sergeant Colwell that it was just a nip, it never broke the skin, and no medical attention was needed. Sergeant Colwell advised Trooper Smith to continue to work with and socialize the dog. The dog had been donated from a breeder in New Jersey and had not yet been trained.

Sergeant Colwell testified that he learned that K-9 Garret had bitten Claimant when he was contacted by Trooper Napp, the troop training coordinator (TDC). Sergeant Colwell was told Trooper Smith had picked up K-9 Garret from the kennel a day early "because the dog was acting out". Sergeant Colwell did not conduct any investigation of the incident.

On cross-examination Sergeant Colwell described over twenty years of service with the New York State Police commencing in 2000 until his retirement in 2020. He started as a Trooper before becoming a K-9 Handler in 2004; he was assigned to the canine facility in 2014 as Assistant K-9 Coordinator and became a Technical Sergeant in 2017. Sergeant Colwell testified about the K-9 Unit and its operations; he described the application process to become a K-9 handler as lengthy and highly competitive. Successful applicants are sent to a residential academy in Cooperstown where they undergo a five-month period of training working with their new canine partner, teaching obedience and ensuring the dog can be handled safely and securely. The skills taught at the academy include "tracking, protection, apprehension, narcotics, cadaver, bomb detection".³⁰ Sergeant Colwell described the training process that Trooper Smith would have gone through with his first assigned dog, Doyle. Sergeant Colwell recalled that Trooper Smith reported to him in the summer of 2012 during his first basic school with K-9 Doyle. Sergeant Colwell stated Trooper Smith successfully completed all of the tasks while in attendance at school for his certification and to be deployed, and he would have been required to return to Cooperstown twice per year for a period of one week "to [re-certify] the dog in all disciplines they had".³¹ Doyle had some health issues and so Trooper Smith was assigned another dog before K-9 Garret. Trooper Smith worked in a new program, the Enhanced K-9 program, where they work and would be deployed with the "SORT Team",³² which is like a SWAT team. Trooper Smith would have gone through another training program, not another basic school, it is a "retread school"³³ for an abbreviated period of time. After the training Trooper Smith deployed and was assigned to Troop D, which was a very competitive troop with a lot of support for the K-9 program. Trooper Smith would have had on-going training of at least four days per month. The second dog, K-9 Will was killed in the line of duty. That is when Trooper Smith was assigned K-9 Garret. Trooper Smith then again had to go through the retread training.

Sergeant Colwell recalled that after receiving the email from Trooper Smith about his wife being bitten, he called Trooper Smith and learned that the dog had nipped his wife, and it wasn't the day of the email. Trooper Smith did not notify his supervisors at Troop D. He told Sergeant Colwell that he didn't report it because nothing happened.

Sergeant Colwell contacted his superiors at the conclusion of his conversation with Trooper Smith to inform them that K-9 Garret had nipped at Trooper Smith's wife. Sergeant Colwell was asked to inquire whether Trooper Smith was okay to handle the dog and whether the family wanted the dog in their house. The following day, Sergeant Colwell sent Trooper Smith the follow-up email asking those specific questions and Trooper Smith answered affirmatively to both.

Sergeant Colwell recalled past instances when dogs that were deemed overly aggressive were taken out of the program. A dog that was already aggressive they did not want in the K-9 program. Sergeant Colwell did not think there was any need to take K-9 Garret out of the program based on the information he had at that time.

Sergeant Colwell was not aware whether K-9 Garret had received additional training outside of the Cooperstown facility. He confirmed K-9 Garret was deployed to field work in April 2018, following his Cooperstown training.

Claimant, Emily Smith, was the next witness. At the time of trial, Claimant was twenty years old and has resided at the same address for the preceding twelve years. Her parents are Shaun Smith and Elizabeth Williams. At the time of this incident Claimant was thirteen years old.

Claimant described that her father was a New York State Trooper, and from 2012 to 2018, he was a K-9 Handler. He had three different dogs assigned to him, and K-9 Doyle still lives with the family. Claimant characterized K-9 Garret as "very anxious".³⁴ She acknowledged that she liked K-9 Garret and generally got along well with him. She conceded K-9 Garret had never acted aggressively towards her, but stated she had observed him grab at her mother's sweatshirt sleeve one day. Claimant stated she did not believe K-9 Garret was playing around when he grabbed at her mother's sweatshirt sleeve that day, although he did not growl, bark or snarl. She testified that K-9 Garret never previously acted in any aggressive manner towards her.

Claimant testified about what happened after the family returned from vacation in Washington D.C. in 2018 for "police week", while K-9 Garret was boarded at the Liverpool Animal Health Center. On May 14, 2018, when Claimant woke up at around 11:00 a.m., she went downstairs to get a cup of coffee. She testified that "[m]y mom had told me that my dad went and got Garret.³⁵ And then I leaned on the couch, I had called him, and he came up and he ran up to me. He seemed happy to see me. Then, he put his paws on my shoulders to give me a hug like we usually would do. And next thing I know, he bit me. And that's, how it happened".³⁶ She was bitten on the left side of her face above her eye. She recalls grabbing her forehead and going to the sink and saw a lot of blood dripping down. Her mom called her dad upstairs and gave her paper towels for her head. Her father put K-9 Garret in the kennel and called the ambulance which took Claimant to Upstate Hospital. Claimant recalled that her dad had talked with her about K-9 Garret when he first came before he was trained.

On cross-examination Claimant acknowledged that during the seven months that K-9 Garret had lived in the family home he had never been aggressive towards her prior to May 14, 2018. She also agreed that K-9 Garret had never been aggressive toward Claimant's father, brother or grandmother during this time frame. Claimant had witnessed the day that K-9 Garret was aggressive and nipped at her mom's sweatshirt. While K-9 Garret lived with the family, he would socialize with them, and a few times a week he would sit on the couch with her and her mother. Claimant's normal interactions with K-9 Garret included hugs where K-9 Garret would come up to her, put his paws on her shoulders and she would hug him back, placing her arms near his shoulders. She denied that hugs were a daily occurrence but were part of a regular routine. She conceded that hugs would occasionally include dog kisses, resulting in K-9 Garret licking Claimant's face. Although Claimant characterized K-9 Garret as anxious, she testified that he never exhibited anxiety around her, only other people. She agreed that prior to May 14, 2018, K-9 Garret had never bitten her. Claimant testified that she was not made aware that her dad had picked K-9 Garret up from the vet clinic early on the day she was injured or the reason why. Claimant received no warning about K-9 Garret that morning. At the time that she called K-9 Garret upstairs on May 14, 2018, her mom was in the kitchen area, which is open to the family room, and her dad was downstairs. When K-9 Garret came up to her that morning, he put his front paws in her lap and then put his paws on her shoulders. Claimant anticipated that K-9 Garret would give kisses to her when she was bitten. She acknowledged that the bite was unexpected. Claimant had been previously bitten on the lip by a Rottweiler requiring stitches when she was six or seven years old.

Claimant's next witness was Elizabeth Williams, her mother. Ms. Williams brought the claim on behalf of her daughter because Claimant was a minor at the time of the incident. She affirmed that Trooper Smith had been a K-9 Handler from 2012 to 2018 and was assigned K-9 Garret in November 2017.

Ms. Williams testified that when K-9 Garret first came to live with the family he was kept in a kennel in their finished basement. She described how K-9 Garret was very aggressive toward her, but not Emily or the other members of the family. She indicated that the dog did not interact very much with their son or her former mother-in-law.

Ms. Williams was asked to describe how K-9 Garret was aggressive towards her. She recounted how K-9 Garret's kennel was kept in the home gym and anytime he heard her come near the door he "immediately would start to growl. As soon as I opened the door and he saw me, he would growl and lunge and snarl and bark and extremely aggressive, extremely aggressive".³⁷ She asserted that K-9 Garret had tried to bite her on one occasion, but she could not recall the exact date. She recalled on that occasion Trooper Smith had taken K-9 Garret for some canine training with other handlers and after that training, they asked Ms. Williams to come to the site to see how she was interacting with K-9 Garret. She was there for about a half-hour or so, and during the interaction K-9 Garret seemed okay with her. Ms. Williams went home first, and thereafter, when Trooper Smith arrived, about five minutes after coming in the front door, K-9 Garret growled, lunged and nipped at her, but only caught the sleeve of her sweatshirt.³⁸ Ms. Williams maintained K-9 Garret was always aggressive towards her, with a little snarl or growl. She indicted that that was the clue that he had to go downstairs.

Ms. Williams testified that when Trooper Smith first brought K-9 Garret to their home he told the family, "[b]e careful. It's a new dog. Just remember, it's a new dog, we just have to learn him".³⁹

After K-9 Garret was trained, the family went on vacation for about a week to Washington D.C. during Law Enforcement Week. Ms. Williams affirmed that K-9 Garret was kenneled at their vet's office. She recalled the family returned from their trip at night, so Trooper Smith picked up K-9 Garret the next morning. Ms. Williams described K-9 Garret's demeanor when he was brought home as "[s]urprisingly, he was okay . . . I was in the kitchen when he brought him home. He came in he ran up to me, was okay. There was no growling, no barking, no nothing. He seemed happy."⁴⁰ She testified that she said, "wow that's weird",⁴¹ and Trooper Smith indicated that the dog was getting used to the family. Ms. Williams played ball with K-9 Garret that morning and thought the dog seemed perfectly fine.

Ms. Williams described how when Claimant awoke, she came downstairs. She did not recall Claimant calling to K-9 Garret, but she did testify that Claimant called the dog during her deposition. She did remember K-9 Garret coming upstairs from the basement. She acknowledged that K-9 Garret was fond of Emily, and they often playfully interacted. Ms. Williams stated Claimant was sitting on the arm of the couch, and K-9 Garret "ran around the corner and jumped up into her lap and gave her . . . a hug".⁴² Ms. Williams then testified that "[o]ut of nowhere, he growled and turned and bit her on the face".⁴³ Ms. Williams affirmed she immediately yelled at him and told him "no". He jumped down and cowered by the edge of the counter and she yelled for Trooper Smith to come upstairs.

Ms. Williams rendered aid to Claimant while Trooper Smith called 911. An ambulance arrived at the residence and transported Claimant to SUNY Upstate where she was taken to the pediatric emergency room for treatment. Claimant received stitches. Ms. Williams testified K-9 Garret remained with the family for an additional couple of days before he was removed from the home.

On cross-examination, Ms. Williams testified about K-9 Garret's daily working schedule with Trooper Smith, which involved Trooper Smith getting up in the morning, getting ready for work, then feeding and taking K-9 Garret out from the kennel, and then returning him to the kennel while he completed getting ready for work. Once ready, Trooper Smith and K-9 Garret would go to work from 8 a.m. to 4 p.m.,⁴⁴ Monday through Friday. She acknowledged she had no firsthand knowledge of how K-9 Garret behaved with Trooper Smith at work and agreed that the dog did not act aggressively toward her son or Trooper Smith, or Emily, aside from the May 14th incident.

Ms. Williams agreed that on May 14, K-9 Garret was happy to see Claimant. He jumped on her lap and gave her a hug. A behavior he exhibited repeatedly before May 14, 2018. She agreed that there had never been any problems in the past before May 14, with K-9 Garret and Claimant. She described the bite to Claimant as coming out of nowhere.

At trial, Ms. Williams denied feeding K-9 Garret because he was extremely aggressive towards her, but at her deposition she indicated that at first, she didn't feed him, but as time went on, she did feed him. Notwithstanding this admission, Ms. Williams maintained K-9 Garret was extremely aggressive towards her, but conceded she had never witnessed him behave aggressively towards any other member of the household. She agreed that K-9 Garret was allowed to move freely around the house, although she also testified that when K-9 Garret initially came to the home, they kept him on a leash. She acknowledged however that K-9 Garret was off the leash on the day he bit Claimant, nor was he on leash when he would sit on Claimant's lap while on the couch.⁴⁵

Claimant's Arguments

Claimant brought her claim alleging that the State was negligent, violated its own rules and regulations in the New York State Police Canine Manual,⁴⁶ and that K-9 Garret had vicious propensities of which the State had prior notice. In her post-trial brief, Claimant argues that she had to prove three factors, that K-9 Garret was owned by the State of New York, K-9 Garret bit Claimant and Defendant had notice of K-9 Garret's vicious propensities. She argues that she met all three.

Defendant's Arguments

Defendant argues that the evidence at trial did not establish that K-9 Garret had a proclivity to bite others or a vicious propensity. It is Defendant's position that the nipping at the mother, Ms. William's sweatshirt is only a minor event and is insufficient to show a vicious propensity. The nature and frequency of K-9 Garret's alleged aggressive behavior does not provide a reasonable basis to conclude that the dog had vicious propensities. Defendant points to Claimant's testimony that she called K-9 Garret that morning and the two were engaging in hugging, a regular event, at the time of the unanticipated bite, Defendant also denies notice to the State, pointing to Trooper Smith's denial to Sergeant Colwell that K-9 Garret bit his wife, and no further report of the incident to higher level administrators although required. Trooper Smith downplayed the event with his wife to Sergeant Colwell and failed to offer trial testimony from the vet clinic to expound upon the incident there.

Defendant also argues that if the State is found to be liable for Claimant being bitten by K-9 Garret, then the parents should be also held responsible for harboring a vicious dog. Harboring involves feeding and sheltering a dog, exercising some control over the dog and permitting it to live in your home and roam freely around the house. Even non-owners can be held liable if they are found to harbor a dog with vicious propensities. Although Trooper Smith was primarily responsible for K-9 Garret, Defendant argues that the mother also harbored the dog by caring for it- feeding it, playing with it, training with it at the firehouse, she also reprimanded the dog after it bit Claimant. Defendant also alleges that Claimant should be found to be comparatively negligent, since she knew that K-9 Garret had nipped at her mother and was anxious, yet she called the dog that morning and engaged with him. Defendant also seeks contribution from the parents if the State is found liable. Although Defendant acknowledges that the contributory negligence of the parents cannot be imputed to the infant, where the actions of the parents would be a tort if done by one person to another, outside the parent and child relationship, i.e. where the cause of action does not arise from the parent's negligent supervision of the child, they can bear a portion of the responsibility for the injuries to their child. Defendant argues that the parents' harboring of this dog created a foreseeable risk of injury to their daughter or someone else in the home establishing the parents' negligence.

Following the parties submissions, the Court of Appeals decided Flanders v Goodfellow, ____ NY3d __ , 2025 NY Slip Op 02261 [2025], in which the Court overturned its decision in Bard v Jahnke, 6 NY3d 592 [2006] that had held that where harm is caused by a domestic animal an owner's liability should be determined solely upon a showing of vicious propensities that the owner knew or should have known about, resulting in injury (Bard, 6 NY3d at 599; Collier v Zambito, 1 NY3d 444 [2004]). In Flanders the Court of Appeals held that a plaintiff injured by a domestic animal now has a two pronged approach, if the owner knew or should have known of an animal's vicious propensities relief can be pursued under a theory of strict liability, or an action may be brought in ordinary negligence requiring proof that the owner- defendant- failed to exercise due care under the circumstances resulting in injury (Flanders, 2025 NY Slip Op 02261 [2025]).

As a result of the change in the law, the Court allowed the parties to make additional submissions. Claimant submitted an "Amended Post-Trial Memorandum". Defendant chose to rest upon its prior submission. Having alleged negligence in the claim, Claimant argued that the State should be found liable based upon both strict liability and negligence. Claimant points to Trooper Smith's notice that morning that K-9 Garret needed to be picked up from the vet clinic early because K-9 Garret had purportedly nipped at a vet technician, yet he returns home and lets K-9 Garret freely roam the house. Despite the notice of aggressive behavior Claimant argues that Trooper Smith failed to take reasonable steps to prevent foreseeable harm.

Legal Discussion

Strict Liability

"For at least 188 years the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities" (Collier, 1 NY3d 444, 46 [2004] [internal citations omitted]).Where an animal's vicious propensity is shown, the owner's knowledge of this propensity once established results in strict liability (Bard, 6 NY3d 592, 597 [2006]).

In relation to dogs, vicious propensities does not require evidence solely of ferociousness or prior biting behavior, but can include a tendency to growl, snap, or bare its teeth and a "propensity to do any act that might endanger the safety of the person and property of others" (id. at 449).Relevant considerations include a prior attack, evidence of growling, snapping, baring teeth, the manner in which the dog was restrained, the nature and result of the subject encounter with the animal, and the type and size of thedog (Collier, NY3d 446-447; Lynch v Nacewicz, 126 AD2d 708, 709 [2d Dept 1987] [nature and result of the attack]; Beljean v Maiuzzo, 256 AD2d 533, 533-534 [2d Dept 1998] [dog pit bull mix, served as a guard dog, "Beware of Dog" sign on property]; Owens v Lennon, 30 Misc 3d 1222 [A] 2011 NY Slip Op. 50158 [U] [Sup Ct Rensselaer County 2011]). Any act, even playful behavior, that is shown to have a proclivity to endanger the safety of others, can be considered a vicious propensity (see, Handel v Carey, 217 AD3d 1222 [3d Dept 2023]; Pollard v United Parcel Serv., 302 AD2d 884, 884 [4th Dept 2003] [dog was chained but ran toward plaintiff frightened her causing her to step back into roadway where she was struck by a vehicle, summary judgment denied]; Marquardt v Milewski, 288 AD2d 928, 928 [4th Dept 2001] [jumping and scratching, summary judgment denied]; Provorse v Curtis, 288 AD2d 832, 832 [4th Dept 2001] [dog "muzzle greeted" customers, touching them on arm or leg, caused plaintiff to fall and fracture hip, summary judgment denied]; Anderson v Carduner, 279 AD2d 369, 369 [1st Dept 2001] [dog tendency to rise up and greet people stood on hind legs and poked plaintiff in her eye with its snout, summary judgment should not have been granted to defendant]). Yet, more than normal dog behavior, such as running and barking is necessary (Collier, 1 NY3d 444,447-448; Brady v Contangelo, 148 AD3d 1544, 1546 [4th Dept 2017]).

To establish an owner's knowledge of vicious propensities, "proof of prior acts of a similar kind of which the owner has notice" will support a finding (Bard, 6 NY3d at 597, quoting Collier, 1 NY3d at 446). Even in the absence of the dog previously biting someone, knowledge of the dog growling, snapping or baring its teeth, or where the owner restrains the dog may be competent evidence to demonstrate knowledge (Pollard , 302 AD2d at 884 [summary judgment denied, despite no bite where dog was chained ran toward plaintiff caused her to step back and was struck by truck]). Thus, an issue of knowledge was found where a dog was shown to have a history of playfully attacking others, a large dog with a propensity for jumping, where defendant chained the dog at his place of business to prevent the dog from "jumping on cars" (Felgemacher v Rugg, 28 AD3d 1088, 1089 [4th Dept 2006]). Yet, where there is no history of biting or depicting threatening behavior toward anyone, an unprovoked attack on child did not permit a finding that the defendant had notice of vicious propensity (Plennert v Abel, 269 AD2d 796, 796 [4th Dept 2000]; see also Gammon v Curley, 147 AD3d 727, 728 [2d Dept 2017] [dog not aggressive, did not growl or spontaneously jump on people, defendants did not restrain dog, judgment in favor of defendant]).

This case presents a closer question. Trooper Smith testified that on the day that K-9 Garret nipped at his former wife, Elizabeth Williams's sweatshirt, it was unprovoked and without growling or snarling. She came to the door to greet the dog, and Trooper Smith said the dog grabbed at her with his teeth. This occurred after his wife had spent time working with the dog earlier that same afternoon. Claimant also testified that K-9 Garret's behavior that day was not playful. This incident was before K-9 Garret went to the police training. Yet, Trooper Smith described how K-9 Garret continued to display aggressive behavior, especially with new people, during and after training. Trooper Smith acknowledged that he was an experienced dog handler and noted the difference between K-9 Garret and his prior dog assignments. He indicated that K-9 Garret was not "happy and approachable".⁴⁷ Although the other K-9 dogs assigned to Trooper Smith quickly acclimated to the home and slept upstairs, K-9 Garret remained kenneled in the basement for the entire seven months he was with Trooper Smith. Trooper Smith described how when he took K-9 Garret to training, and other handlers approached him he would exhibit behavior of trying to bite them.

Ms. Williams testified that K-9 Garret was particularly aggressive toward her, and whenever she would approach the door of the room where his kennel was, he would growl, snarl, and bark and lunge toward her. Interestingly, Trooper Smith did not mention the growling, snarling and barking at Ms. Williams when K-9 Garret was in the kennel in the basement. On the day that K-9 Garret nipped at Ms. Williams sweatshirt, it was unprovoked, and although Ms. Williams testified, he growled at her, neither Trooper Smith nor Claimant heard him growl. Ms. Williams testified that K-9 Garret frequently growled and snarled at her, requiring him to be returned to the basement kennel, a factor Trooper Smith did not note during his testimony. Trooper Smith primarily noted K-9 Garret's continued aggressive behavior toward other handlers while at the local monthly training.

Despite both parents having notice of K-9 Garret's aggressive behavior, it is clear that neither parent thought that K-9 Garret would bite Claimant. K-9 Garret seemed to really like Claimant. Trooper Smith permitted K-9 Garret to access the house with the family present unencumbered while Trooper Smith was home. Yet, unlike in Loveno v Schwartz, 139 AD3d 1012, 1012-1013 [2d Dept 2016], where the infant plaintiff was bitten without warning or provocation after having been a guest in the defendant's home many times, while he was petting the dog with defendant's son at the time, in this case K-9 Garret had previously exhibited vicious behavior. In Loveno, the defendant's had no prior notice of any prior biting or aggressive behavior at all, the dog without warning lunged and bit the infant plaintiff allowing defendant to be granted summary judgment. Here although K-9 Garret's behavior had improved over time, and he had never exhibited any aggressive behavior toward Claimant, Trooper Smith undisputedly had notice that K-9 Garret had vicious propensities- lunging, growling, trying to bite, although not previously directed toward Claimant. The propensity- or inclination to act viciously- was displayed by K-9 Garret on more than one occasion, with the knowledge of Trooper Smith. Although this propensity was not anticipated toward Claimant, the case law is replete with the sudden and unprovoked vicious behavior of domestic animals. Moreover, even when K-9 Garret nipped at Ms. Williams, it was unprovoked and unanticipated. Trooper Smith's continued placement of K-9 Garret in the kennel at night or when he was not home, seems to reflect some awareness that K-9 Garret's behavior- even at home- required limitations and monitoring. Although K-9 Garret never displayed aggressive behavior toward Claimant, there is no requirement that the vicious propensity be directed at the resulting victim, as long as the resulting injury was from the noticed viciousness or proclivity to cause injury (i.e., Christopher P. v Kathleen M.B., 174 AD3d 1460, 1461 [4th Dept 2019] [infant injured when bitten sitting on sofa, where owner's dogs were fighting or aggressively playing with each other and one of them bit the infant]; Modafferi v DiMatteo, 177 AD3d 1413 1414 [4th Dept 2019] [plaintiff was bitten attempting to pull dogs apart after Defendant's dog attacked plaintiff's dog]; compare, Handel, 217 AD3d 1222, 1223-1224 [3d dept 2023] [despite seeing the dog about a dozen times previously, no prior aggressive behavior toward plaintiff, court found no notice of vicious propensities because there was no known prior aggressive behavior at all, granted summary judgment for Defendant]; Vannucci v Vannucci, 180 Misc 2d 182 [Sup Ct Kings County 1999] [previous knowledge of dog's vicious propensity toward sister, raised issue of comparative negligence in adult plaintiff's action against parents for injuries from being bitten by their dog]).

Although Defendant argues that Trooper Smith's supervisors lacked notice of K-9 Garret's vicious propensities, the knowledge of Trooper Smith, as an agent/employee of the NYS Police is imputed to the State. K-9 Garret was owned by the NYS Police. Trooper Smith was employed by the NYS Police in the position of a K-9 Dog Handler, a competitive and highly sought after position. Trooper Smith was required to keep his K-9 assignment at his home and socialize the dog. His care for K-9 Garret was part of his duties as a NYS Police Dog Handler. K-9 Garret exhibited vicious behaviors- biting, attempting to bite, lunging, snarling, growling. Trooper Smith knew of his aggressive behavior particularly toward Ms. Williams and new people, and especially during the monthly training sessions. Trooper Smith acting within the scope of his employment, as an agent for the NYS Police and Trooper Smith's knowledge is imputed to the Defendant regardless of whether he informed his supervisors about K-9 Garret's vicious propensities (Pauszek v Waylett, 173 AD3d 1631, 1631 [4th Dept 2019]; see generally, BL Doe 5 v Fleming, 229 AD3d 1076, 1080 [4th Dept 2024]). Additionally, at least some of K-9 Garret's vicious behaviors occurred during local monthly trainings in the presence of Trooper Smith's supervisor, Trooper Napp, and others.

Negligence

After this case was tried, but before a decision was rendered, the Court of Appeals decided Flanders, ___NY3d _____, 2025 NY Slip Op 02261, permitting one injured by a domestic animal to now seek under ordinary negligence principals to establish that the defendant failed to exercise due care under the circumstances resulting in injury (Flanders, ___NY3d _____, 2025 NY Slip Op 02261* 8). The change in the law is applicable to cases still pending after the Flanders decision (Miller v Wamp, 239 AD3d 1391, 1392 [4th Dept 2025]; LaRocca v Lauer, 240 AD3d 867, 868-869 [2d Dept 2025]).

In order to find defendant liable in common-law negligence, a claimant must demonstrate (1) a duty owed to the claimant, (2) a breach of that duty, and (3) that the breach was a proximate cause of the injuries (see Flanders, 2025 NY Slip Op 02261 [2025]; Ingrassia v Lividikos, 54 AD3d 721, 724, [2d Dept 2008]). Here, Trooper Smith had a duty to maintain control over K-9 Garret and when unattended to keep the dog secured.⁴⁸ The State through Trooper Smith had a duty to take reasonable steps to keep those who encountered K-9 Garret safe from injury caused by K-9 Garret. Trooper Smith was aware of K-9 Garret's aggressive behavior towards his former wife and other handlers while at regular trainings, yet he failed to closely monitor the dog and allowed it to roam the family home unattended, as occurred on May 14, 2018. Trooper Smith also failed to notify his Troop Commander when the dog nipped at his wife, or following notification of the incident at the vet clinic. Trooper Smith failed to warn his daughter about K-9 Garret and to ensure that K-9 Garret was not treated as a family pet in the home environment.

Ms. Williams acknowledged K-9 Garret was permitted to roam about the residence, and she was present in the home when he was off leash. She acknowledged that when they initially got K-9 Garret he was to be on leash at all times and next to Trooper Smith. Trooper Smith conceded K-9 Garret was obedient while on lead. Trooper Smith knew that K-9 Garret was an anxious dog, that had exhibited vicious propensities and acted out while boarded at the vet the day before Claimant's injury, after the family had been away for an extended time. Trooper Smith failed to monitor, and keep control over K-9 Garret, or alert his young daughter to be careful around K-9 Garret.

It is these failures that led to Claimant's injury. Claimant has adequately established the negligence of Trooper Smith in handling K-9 Garret around his family leading to Claimant's injury.

Defendant's Defenses

Comparative Negligence

Defendant argues that because Claimant knew that K-9 Garret had lunged and nipped at her mom's sweatshirt, she knew of his vicious propensities; yet she still called the dog up the morning she was bitten and let it jump up on her and place it's front paws on her shoulders providing access to her face and head, thereby reflecting her comparative negligence. Although comparative negligence is a relevant inquiry even in cases invoking strict liability, "[t]he liability is absolute unless the plaintiff with full knowledge of the evil propensity of the dog either wantonly excites the dog or puts himself in the way of the dog thereby bringing the injury upon himself" (DiGrazia v Castronova, 48 AD2d 249, 250 [4th Dept 1975]; Arbegast v Board of Education, 65 NY2d 161, 168 [1985]; Smith v Sapienza, 115 AD2d 723, 723-724 [2d Dept 1985]). In determining whether the claimant bears any culpable conduct for her injuries, her conduct must be evaluated from the perspective of what a reasonably prudent thirteen-year-old, with her experience and intelligence would do (Morales v Quinones,72 AD2d 519 [1st Dept 1979]).

In this case the Court does not find that Claimant bears any culpable conduct contributing to her injury for several reasons. First, Claimant's parents, particularly her father with full knowledge of K-9 Garret's vicious propensity, allowed the dog to interact with his daughter without direct supervision, and without warnings for caution around the dog. The infant daughter was permitted to have regular access with K-9 Garret. She was involved with the dog from a thirteen-year-old perspective, within the context of engaging with the other nonaggressive K-9 dogs assigned to her father, including Doyle who remained a family dog after his retirement from the K-9 program. She was permitted to engage with the dog as if it were a family pet, which as Sergeant Colwell noted in his email to Trooper Smith, K-9 Garret was not. The testimony does not support a finding that the Claimant knew and appreciated K-9 Garret's vicious propensity or proclivity toward aggressiveness. Nor does the evidence support that Claimant was aware of the extent of K-9 Garret's aggressiveness while her father was at the monthly trainings, or the aggressiveness toward her mom, when K-9 Garret was in his kennel. Secondly, K-9 Garret had never previously been aggressive toward her. Third, the Court does not find that she engaged in conduct that morning that "wantonly excite[d] the dog or voluntarily put [herself] in the way of the dog thereby bringing the injury upon herself" (compare, DiGrazio, 48 AD2d at 250 [six-year old after going to growling dog twice went a third time and was bitten]; Gordon v Roselli, 5 Misc 3d 1001[A] [Sup Ct Kings County 2004] [plaintiff agreed to share an apartment with dog's owner, with full notice of dog's prior aggressive actions, including biting, when plaintiff put her foot on dog's toy a second time after dog had put mouth on her foot for same prior action, she was severely bitten; Owens, 30 Misc 3d 1222 [A], 2011 NY Slip Op. 50158 [U] [plaintiff knew of dog's viciousness when she opened the door only five inches in order to return defendant's other dog and was attacked, question of fact whether she was negligent]). Here Claimant's conduct did not culpably contribute to her injury from K-9 Garret's unprovoked and without warning biting behavior. Moreover, the negligence of Claimant's parents cannot be imputed to her (General Obligations Law § 3-111).

Harboring/Apportionment/Contribution

Defendant seeks a finding from the Court that the parents in this case should also be found partially liable for harboring a vicious dog and Defendant seeks contribution from the parents as a reduction to any award of damages. Defendant argues that although neither the mother or father in this case own the dog, they permitted the dog to remain in their home despite knowing its vicious propensities and therefore should be held responsible for harboring the dog and some liability should be apportioned to them. Harboring, Defendant argues, requires providing food and shelter to the dog, exercising some degree of control over the dog, permitting it to reside in the home and allowing it to roam freely, and participating in the cleaning, feeding or letting the dog out, all actions undertaken by both parents (citing to New York Agriculture and Markets § 108 [10]; Quilty v Battie, 135 NY 201 [1892] [wife liable for harboring dog on her property she knew had vicious propensities although owned by her husband]; Matthew H. v County of Nassau, 131 AD3d 135 [2d Dept 2015] [cotenants could be found liable for harboring dog with vicious propensities owned by another tenant, where dog freely roamed, and cotenants played some role in care of dog, i.e., letting it in and out, cleaned up after it and was part of household]; Dufour v Brown, 66 AD3d 1217 [3d Dept 2009] [Defendant owner of property could be found liable for vicious dog of owner who resided with defendant with full knowledge of vicious propensities]).

Although acknowledging that its right to seek contribution is limited, Defendant argues it is not prohibited where the defense is based upon the affirmative negligence of the parent and not upon the negligent failure to supervise the child, citing Cox v Cheaib, 231 AD2d 841, 841 [4th Dept 1996]).

In opposition to Defendant's position on the parents' harboring of K-9 Garret and seeking contribution from the parents, Claimant argues that Defendant should not be permitted to argue or rely on harboring, since a requirement of Trooper Smith's employment as a dog handler with the NYS Police is that the dog be kept at the family home. Claimant also argues that Trooper Smith fed and cared for K-9 Garret as an employee of the State of New York, not as a private individual, and therefore no liability should be apportioned to Trooper Smith personally.

A non-owner of a dog found to have vicious propensities, who keeps the dog on one's premises, allowing it to be there, who exercises some degree of control over the dog can also be found liable to a person injured by the dog's known propensity (Quilty, 135 NY 203-204; Dufour, 66 AD3d at 1218). "It is the duty of the person whose premises it frequents to send it away or cause it to be destroyed" (Quilty, 135 NY 203-204).

Trooper Smith certainly, by definition harbored K-9 Garret at his home- feeding and caring for the dog and exercising some control over it. Yet, in this case it is undisputed that as part of Trooper Smith's employment as a dog handler for the NYS Police, he was required to keep the dog at his home, to care for the dog, to help socialize it. The actions that comprise harboring, are the exact same actions that are required by Trooper Smith's employment. Defendant argues that given the Court's finding that the State through Trooper Smith is liable for K-9 Garret's vicious propensities and Trooper Smith was negligent in his control of the dog, some portion of the liability should be imposed upon Trooper Smith in his personal capacity for harboring this dog. The evidence however does not support such a finding because there is no evidence that Trooper Smith's time in the care, maintenance and control of this dog was personal rather than in his role as a dog handler for the State Police. Trooper Smith officially worked with K-9 Garret, Monday through Friday from 7:00 a.m. to 3:00 p.m., however his role as a dog handler did not end at the end of the workday, he continued to work with the dog, feed and care for the dog before and after this time frame. This was an expected and obligatory part of the position that Trooper Smith held as a dog handler and no evidence was introduced to identify any portion of his role with this dog as "personal" to warrant an apportionment of personal liability.

Although to a lesser extent Ms. Williams too harbored the dog, by it residing in her home, feeding K-9 Garret on occasion, and exercising some control over him- directing that K-9 Garret be placed in the kennel when he growled at her while upstairs, and allowing him on occasion to sit next to her on the sofa. Yet, unlike as the Court of Appeals indicated in Quilty, 135 NY 201, where Ms. Battie was found to have harbored her husband's vicious dog on her property, and could have had her husband's vicious dog removed, the evidence does not support that this was an option for Ms. Williams. Ms. Williams could not readily send K-9 Garret away, as evident from her testimony that after Claimant was bitten the dog remained in the family home for at least some additional days. In this case, there is a dynamic- a requirement for her then husband's employment- that is not present in any of the cases where a non-owner was found liable for harboring a vicious dog [compare, Cronin v Chrosniak, 145 AD2d 905, 907 [4th Dept 1988] [summary judgment in favor of defendant lessor should have been denied where defendant lessor had notice of vicious propensity and with month-to-month tenancy had capability to require tenant to get rid of dog]).

Accordingly, the Court finds that Defendant is one hundred percent liable for Claimant's injuries. A conference will be scheduled to set a trial date on the issue of damages and to discuss alternative dispute resolution.

Any and all evidentiary rulings or motions upon which the Court may have previously reserved, or which were not previously determined, are hereby denied.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

Syracuse, New York

September 30, 2025

RAMÓN E. RIVERA

Judge of the Court of Claims

FOOTNOTES

1.   The claim was originally brought by Elizabeth Smith (now, Elizabeth Williams) on behalf of her minor daughter, Emily Smith. Emily has reached majority, and the caption of the action was changed by stipulation on March 16, 2022, to reflect Emily Smith as Claimant.

2.   At the time of the incident, Ms. Williams, was the wife of Trooper Smith.

3.   Trooper Smith was a witness for Claimant, Defendant did not call or request that Trooper Smith appear as a witness on behalf of the State.

4.   Trial Transcript, Volume I, page 11, Trooper Smith emphasized the importance of canine socialization stating that "socialization is where—you know, per our model, our dogs have to be happy, approachable. They have to work within the public, because we serve the public" (Trial Transcript, Volume I, page 13).

5.   Trial Transcript, Volume I, page 12.

6.   Trial Transcript, Volume I, page 15, Exhibit 6. Trooper Smith emphasized this point on direct stating that during the course of trying to work the training model with other State employees, K-9 Garret's first reaction, whenever he was introduced to new people, was to bite although he had not bitten anyone (Trial Transcript, Volume I, page 18).

7.   Exhibit 6.

8.   Id.

9.   Trial Transcript, Volume I, page 17.

10.   Id.

11.   Id.

12.   Trial Transcript, Volume I, page 21.

13.   Claimant presented testimony regarding the reason that K-9 Garret was picked up from the Clinic, which was objected to at trial as hearsay.

14.   Trial Transcript, Volume I, page 25.

15.   Id.

16.   The Assistant Attorney General, solely for convenience, completed a general subpoena for Trooper Smith's testimony and provided it to the Trooper's personal counsel to assist Claimant's counsel in having Trooper Smith testify. Defendant did not call Trooper Smith as its witness.

17.   Trial Transcript, Volume I, page 64.

18.   Id.

19.   Trial Transcript, Volume I, page 89.

20.   Trial Transcript, Volume I, page 69.

21.   Trial Transcript, Volume I, page 71.

22.   Trial Transcript, Volume I, page 77.

23.   Exhibit F, page 83, Lines 1-4, Trial Transcript, Volume I, page 85.

24.   Trial Transcript, Volume I, page 89.

25.   Sergeant Colwell was retired at the time of trial. He retired on June 24, 2020.

26.   Exhibit 6.

27.   Exhibit 6, Trial Transcript, Volume I, page 97.

28.   Trial Transcript, Volume I, page 98.

29.   Id.

30.   Trial Transcript, Volume I, page 102.

31.   Trial Transcript, Volume I, page 107.

32.   Id.

33.   Id.

34.   Trial Transcript, Volume II, page 123.

35.   This testimony is different than Trooper Smith's recollection that he was in the Family Room with K-9 Garret and Doyle when Claimant came downstairs, and that K-9 Garret seemed happy to see Claimant.

36.   Trial Transcript, Volume II, page 125.

37.   Trial Transcript, Volume II, page 155.

38.   Neither Trooper Smith nor Claimant recalled that K-9 Garret growled before he nipped at Ms. Williams.

39.   Trial Transcript, Volume II, page 158.

40.   Trial Transcript, Volume II, page 159.

41.   Id.

42.   Trial Transcript, Volume II, page 161.

43.   Id.

44.   Trooper Smith testified his work hours were 7:00 a.m. until 3:00 p.m.

45.   Ms. Williams stated that while he was in the house K-9 Garret was on a leash "at all times" even though he was not on a leash when he bit Claimant, and at other times (Trial Transcript, Volume II, page 180).

46.   A copy of the New York State Police Canine Manual was attached to the claim as Exhibit A.

47.   Trial Transcript, Volume I, page 13.

48.   Claim, Exhibit A, page 11 (2) (b).

Ramón E. Rivera, J.