Vitrella v. Rodrigues

Appellate Division of the Supreme Court of New York

Vitrella v. Rodrigues

11 A.D.3d 287, 783 N.Y.S.2d 535, 2004 N.Y. App. Div. LEXIS 11939

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 14, 2004

StatusPublished

Cited by3 cases

This text of 11 A.D.3d 287 (Vitrella v. Rodrigues) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vitrella v. Rodrigues, 11 A.D.3d 287, 783 N.Y.S.2d 535, 2004 N.Y. App. Div. LEXIS 11939 (N.Y. Ct. App. 2004).

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Opinion

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 propensit[y]” (Carter v Metro N. Assoc., 255 AD2d 251, 251 [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 AD2d 35, 38 [1999], lv dismissed 94 NY2d 796 [1999]. There is no such showing here. Based on the record presented, we find the New York City Leash Law inapplicable. Concur—Mazzarelli, J.P., Sullivan, Friedman, Gonzalez and Catterson, JJ.

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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 propensit[y]” (Carter v Metro N. Assoc., 255 AD2d 251, 251 [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 AD2d 35, 38 [1999], lv dismissed 94 NY2d 796 [1999]. There is no such showing here. Based on the record presented, we find the New York City Leash Law inapplicable. Concur—Mazzarelli, J.P., Sullivan, Friedman, Gonzalez and Catterson, JJ.

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Bluebook (online)

11 A.D.3d 287, 783 N.Y.S.2d 535, 2004 N.Y. App. Div. LEXIS 11939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vitrella-v-rodrigues-nyappdiv-2004.

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