Vasaturo v Allegretti

[*1] Vasaturo v Allegretti 2005 NY Slip Op 50236(U) Decided on March 1, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-328 RI C

Carmela Vasaturo, Respondent,

against

Dino Allegretti, Appellant.

Appeal by defendant from a small claims judgment of the Civil Court, Richmond County (J. McMahon, J.), entered September 4, 2003, awarding plaintiff the principal sum of $1,350.

Judgment modified by reducing the award in favor of plaintiff to the principal sum of $1,117.96; as so modified, affirmed without costs.

Substantial justice was done between the parties in accordance with the rules and principles of substantive law in finding that defendant was liable for plaintiff's veterinary expenses in treating her dog (CCA 1804, 1807). The record amply supports
the finding of the court, as trier of fact, that defendant's dog attacked and injured plaintiff's dog and that defendant knew or should have known of the dog's propensity for such attacks (see generally Collier v Zambito, 1 NY3d 444 [2004]; see also Lugo v Angle of Green, 268 AD2d 567 [2000]).

Plaintiff properly supported her claim with a paid veterinary bill submitted into evidence (see Coschigano v Vuksanovic, 2 Misc 3d 126[A], 2003 NY Slip Op 51688[U] [App Term, 9th & 10th Jud Dists]). However, the bill is in the amount of $1,117.96, not the $1,350 for which plaintiff asserted her claim. As there was no testimony and no evidence submitted in support of the additional amount, the award should be modified to reflect the amount that plaintiff showed [*2]that she had paid.

Pesce, P.J., and Rios, J., concur.

Patterson, J., dissents in a separate memorandum.

Patterson, J., dissents and votes to reverse the judgment and dismiss the action in the following memorandum:

Because the record fails to support a finding that defendant knew or should have known of his dog's vicious propensities, I respectfully dissent.

Defendant owns a German Shepherd, which he keeps in his yard enclosed by a six-foot fence. On March 17, 2003, plaintiff was visiting her sister, who lives next door to defendant. Plaintiff was sitting with her dog on her sister's property when defendant's dog began to bark and jumped over the six-foot fence, attacking plaintiff's dog, a Dachshund. Plaintiff maintained that, prior to the incident, defendant would warn his neighbor to bring in her dogs every time he let out his dog.

Plaintiff's niece also observed the incident and concurred with plaintiff's testimony. When asked whether she was aware of any prior problems with defendant's dog, she replied that she was "scared" of the dog and that she observed the dog "literally pull [defendant] on the leash" whenever defendant walked him. Based on this testimony, the court below awarded judgment in favor of plaintiff, concluding that plaintiff established the dog's vicious propensity. I disagree.

It is well settled that the owner of a domestic animal is liable for the harm it causes when the owner knows or should have known of that animal's vicious propensities (see Hosmer v Carney, 228 NY 73, 75 [1920]). Other than the witnesses' bare assertions of fear and the fact that defendant's dog barked and was kept in a fenced-in yard, plaintiff submits no proof to establish the dog's vicious propensity or that defendant should have known of any such propensity. While restraint of a dog may be potentially relevant in some cases (see Hahnke v Friederich, 140 NY 224, 226 [1893]), here, the mere fact that defendant kept his dog in an enclosed area is patently insufficient to support a finding of vicious propensities (Collier v Zambito, 1 NY3d 444, 447 [2005] [fact that dog barked and was kept confined in kitchen when visitors came was insufficient to establish vicious propensities]). Indeed, nothing in the record suggests that the dog's confinement was due to any threatening or menacing behavior (see id.).

Nor can such behavior be inferred from the fact that defendant warned his neighbor every time he released his dog into the yard. Absent proof that defendant did so out of concern that his dog might attack, there is no reason to believe that the warning was anything other than a courtesy.

Accordingly, I would vote to reverse the judgment below, and dismiss the action.
Decision Date: March 01, 2005