MINDEL MINDEL v. JONES (2005)

Appeal from an order of the Supreme Court (Nolan Jr., J.), entered January 12, 2004 in Saratoga County, which granted defendants' motion for summary judgment dismissing the complaint.

In August 2001, plaintiff Katherine R. Mindel sustained injuries when she was attacked and bitten without warning by defendants' dog while she was feeding it at defendants' residence, following instructions provided by defendants, who had asked her to care for the dog while they were away.   Plaintiffs thereafter commenced this action.   Defendants' subsequent motion for summary judgment dismissing the complaint was granted by Supreme Court, prompting this appeal.   We affirm.

 “The long-standing and recently reaffirmed law in this state provides that, in the absence of actual or constructive knowledge of a dog's vicious propensities, a dog's owner is not liable when it bites someone” (Czarnecki v. Welch, 13 A.D.3d 952, 953, 786 N.Y.S.2d 659 [2004], citing Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004];  see Palleschi v. Granger, 13 A.D.3d 871, 786 N.Y.S.2d 627 [2004];  Morse v. Colombo, 8 A.D.3d 808, 808, 777 N.Y.S.2d 824 [2004];  Shaw v. Burgess, 303 A.D.2d 857, 858, 756 N.Y.S.2d 362 [2003];  Rugg v. Blackburn, 292 A.D.2d 736, 737, 739 N.Y.S.2d 764 [2002], lv. denied 98 N.Y.2d 614, 751 N.Y.S.2d 168, 780 N.E.2d 979 [2002] ).   Here plaintiffs concede that they have not made such a showing.   Rather, they urge this Court to reinstate the complaint on the ground that recovery may be had under a novel theory of common-law negligence, premised upon defendants' negligence in establishing a care plan for the dog in their absence which represented a “ sudden and unprecedented change in the dog's living conditions,” and care by a stranger.

Notwithstanding precedent from other Departments suggesting that recovery may be had on broader theories of negligence for dog attacks (see e.g. Jennings v. Nespolino, 6 A.D.3d 582, 582-583, 774 N.Y.S.2d 795 [2d Dept.2004];  Noreika v. Casciola, 5 A.D.3d 571, 572, 772 N.Y.S.2d 848 [2d Dept.2004];  see also Williams v. City of New York, 306 A.D.2d 203, 205-206, 761 N.Y.S.2d 221 [1st Dept.2003] ), we discern no basis in these facts for the recognition of an enhanced duty on dog owners who make arrangements, in their absence, for the care of a dog not known to have vicious propensities (see Shaw v. Burgess, supra at 859, 756 N.Y.S.2d 362;  see also Bard v. Jahnke, 16 A.D.3d 896, 791 N.Y.S.2d 694 [decided herewith];  Williams v. City of New York, supra at 205-207, 761 N.Y.S.2d 221;  cf. Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13 [1984];  McKee v. J & J Otsego Props., 277 A.D.2d 787, 788-789, 716 N.Y.S.2d 739 [2000], lv. denied 96 N.Y.2d 705, 725 N.Y.S.2d 277, 748 N.E.2d 1073 [2001] ).   Thus, in the absence of any potential exception, we adhere to the longstanding general, common-law requirement that a dog's vicious propensities must be demonstrated in order to establish a prima facie case under any theory of liability for injuries inflicted thereby (see Collier v. Zambito, supra at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254;  Dickson v. McCoy, 39 N.Y. 400, 403 [1868];  Palleschi v. Granger, supra;  Czarnecki v. Welch, supra;  White v. Tucci, 5 A.D.3d 1018, 773 N.Y.S.2d 728 [2004];  Shaw v. Burgess, supra at 859, 756 N.Y.S.2d 362;  Roupp v. Conrad, 287 A.D.2d 937, 938, 731 N.Y.S.2d 545 [2001];  Restatement [Second] of Torts, § 509, Comment f).

ORDERED that the order is affirmed, with costs.

SPAIN, J.

CARDONA, P.J., MERCURE, PETERS and CARPINELLO, JJ., concur.