VITRELLA v. RODRIGUES (2004)

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 propensity” (Carter v. Metro N. Assoc., 255 A.D.2d 251, 680 N.Y.S.2d 239 [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 A.D.2d 35, 38, 688 N.Y.S.2d 55 [1999], lv. dismissed 94 N.Y.2d 796, 700 N.Y.S.2d 428, 722 N.E.2d 508 [1999] ).   There is no such showing here.   Based on the record presented, we find the New York City Leash Law inapplicable.