BRINKMAN v. (and a third-Party action).

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Supreme Court, Appellate Division, Second Department, New York.

Adara BRINKMAN, appellant, v. Marshall FIELD VI, etc., respondent (and a third-Party action).

2016–03221

Decided: September 12, 2018

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, ANGELA G. IANNACCI, JJ. Steven M. Melley, PLLC, Rhinebeck, NY, for appellant. White Fleischner & Fino, LLP, New York, NY (Allan P. White and Matthew Toker of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated February 9, 2016.  The order, insofar as appealed from, granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff alleges that she was injured while grooming a stallion in the barn at Hidden Brook Farm (hereinafter the farm), when three horses, who had escaped from their paddocks, galloped unaccompanied toward the barn.  The stallion was startled and suddenly side-stepped, pinning the plaintiff against the wall.  The plaintiff commenced this action against the defendant, Marshall Field VI, individually and doing business as Hidden Brook Farm, to recover damages for personal injuries, alleging a single cause of action based on common-law negligence.  The defendant subsequently moved for summary judgment dismissing the complaint, which was granted by order dated February 9, 2016.  The plaintiff appeals.

The defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint by establishing that the stallion and the three escaped horses were domesticated animals, and that the plaintiff did not allege that any of the four horses had vicious propensities.  New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal (see Bard v. Jahnke, 6 N.Y.3d 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463).  An owner of a domestic animal that causes harm may only be held liable where the owner knows or should have known of the animal's vicious propensities (see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993;  Bard v. Jahnke, 6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463;  Collier v. Zambito, 1 N.Y.3d 444, 446–447, 775 N.Y.S.2d 205, 807 N.E.2d 254).  In opposition, the plaintiff failed to raise a triable issue of fact (see Bloomer v. Shauger, 21 N.Y.3d 917, 967 N.Y.S.2d 322, 989 N.E.2d 560;  Bernstein v. Penny Whistle Toys, Inc., 10 N.Y.3d 787, 856 N.Y.S.2d 532, 886 N.E.2d 154;  Abrahams v. City of Mount Vernon, 152 A.D.3d 632, 633, 59 N.Y.S.3d 399;  Xin Kai Li v. Miller, 150 A.D.3d 1051, 1051–1052, 54 N.Y.S.3d 652;  Jones v. Burrell, 136 A.D.3d 866, 866, 24 N.Y.S.3d 917;  Egan v. Hom, 74 A.D.3d 1133, 1134, 905 N.Y.S.2d 624).

Contrary to the plaintiff's contention, this case does not fall within the limited exception set forth in Hastings v. Suave, 21 N.Y.3d 122, 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940, regarding a farm animal that strays from the place where it is kept onto a public road or other property (see Hain v. Jamison, 28 N.Y.3d 524, 532–534, 46 N.Y.S.3d 502, 68 N.E.3d 1233;  Catalano v. Heiden Val. Farms, 158 A.D.3d 1200, 1200–1201, 70 N.Y.S.3d 277;  Carey v. Schwab, 122 A.D.3d 1142, 1143–1145, 997 N.Y.S.2d 180;  Sargent v. Mammoser, 117 A.D.3d 1533, 1534, 986 N.Y.S.2d 728).  In carving out this exception, the Court of Appeals recognized “the unique peril that arises from allowing farm animals to wander off a farm unsupervised and unconfined” and the “common expectation among people in general that a 1,500–pound cow, a 400–pound pig or an unruly goat will not be permitted to wander freely into traffic or onto a neighbor's yard, mangling people and property alike” (Doerr v. Goldsmith, 25 N.Y.3d 1114, 1128–1129, 14 N.Y.S.3d 726, 35 N.E.3d 796 [Abdus–Salaam, J., concurring] ).  Here, the plaintiff was in the barn grooming a horse, and the presence of horses was not unexpected.

In light of the general prohibition against negligence actions arising from harm caused by domestic animals, we agree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.

LEVENTHAL, J.P., COHEN, HINDS-RADIX and IANNACCI, JJ., concur.