This document summarizes proceedings under New York Agriculture and Markets Law §123 regarding dangerous dogs. It defines key terms such as "dangerous dog", "physical injury", and "serious physical injury". It outlines the process for filing a complaint against an allegedly dangerous dog, including who can file a complaint, seizure and hearing procedures, and determinations a judge can make. It also discusses defenses, appeals, liability of dog owners, penalties, and related statutes. The document provides an overview of the legal framework and procedures for declaring a dog dangerous and the potential consequences.

1. “Dangerous Dogs”
Understanding Proceedings Under
Agriculture and Markets Law §123
Jonathan G. Schopf, Esq.
21 Everett Road Extension
Albany, New York 12205
518 489-1098 x 13
www.theanimalattorney.com
www.theanimalattorney.blogspot.com
www.vincelettelaw.com

2. The Statute
• Amended and renumbered effective 1/1/2011
• Formerly Ag and Markets §121
• Many municipal forms still incorrectly refer to §121.
• This may be a jurisdictional issue…..we will wait and
see.
• May be expanded upon by local law
• KNOW THE LOCAL LAW!
• Sample local laws for the Town of Guilderland and City
of Albany at page 24 and 43 of the materials. For many
other local laws see www.generalcode.com.

3. Important Definitions §108
• 108(7) – “Domestic animal”, remember this is not a cat
or dog. No definition of companion animal is given. For
further confusion, see also Public Health Law sec.
2140(13) and Environmental Conservation Law sec. 11-
0103(5)(e) and Ag and Markets Law sec. 350(5).
• 108(10) “Harbor” – to provide food or shelter
• 108(24) “Dangerous Dog”
• 108(28) “Physical Injury”
• 108 (29) “ Serious Physical Injury”
• 108 (5) “Dog”
• 108(15) “Owner”

4. Important terms that are not defined
by Article 7
• Attack (we will define this later)
• Companion Animal (but see Ag and Markets Law sec. 350(5)
“Companion animal” or “pet” means any dog or cat, and shall also
mean any other domesticated animal normally maintained in or
near the household of the owner or person who cares for such
other domesticated animal. “Pet” or “companion animal” shall not
include a “farm animal” as defined in this section.
• Farm Animal (but see Ag and Markets Law sec.350(4) “Farm
animal”, as used in this article, means any
ungulate, poultry, species of
cattle, sheep, swine, goats, llamas, horses or fur-bearing animals, as
defined in section 11-1907 of the environmental conservation
law, which are raised for commercial or subsistence purposes. Fur-
bearing animal shall not include dogs or cats.
• Negligence

5. Who may initiate the complaint - § 123(1)
1. Any person who witnesses an attack or threatened attack, or in the case of a
minor, an adult acting on behalf of such minor, may make a complaint of an attack
or threatened attack upon a person, companion animal as defined in section
three hundred fifty of this chapter, farm animal as defined in such section three
hundred fifty, or a domestic animal as defined in subdivision seven of section one
hundred eight of this article to a dog control officer or police officer of the
appropriate municipality. Such officer shall immediately inform the complainant
of his or her right to commence a proceeding as provided in subdivision two of
this section and, if there is reason to believe the dog is a dangerous dog, the
officer shall forthwith commence such proceeding himself or herself.

6. Seizure and hearing - §123(2)
•DCO may seize dog
•Must hold a hearing within 5 days
• At least 2 days notice

7. “Determination” §123(3)
• 3. Upon a finding that a dog is dangerous, the judge or justice may order humane euthanasia
or permanent confinement of the dog if one of the following aggravating circumstances is
established at the judicial hearing held pursuant to subdivision two of this section:
•
(a) the dog, without justification, attacked a person causing serious physical injury or death;
or
•
(b) the dog has a known vicious propensity as evidenced by a previous unjustified attack on a
person, which caused serious physical injury or death; or
•
(c) the dog, without justification, caused serious physical injury or death to a companion
animal, farm animal or domestic animal, and has, in the past two years, caused unjustified
physical injury or death to a companion or farm animal as evidenced by a “dangerous dog”
finding pursuant to the provisions of this section. An order of humane euthanasia shall not be
carried out until expiration of the thirty day period provided for in subdivision five of this
section for filing a notice of appeal, unless the owner of the dog has indicated to the judge in
writing, his or her intention to waive his or her right to appeal. Upon filing of a notice of
appeal, the order shall be automatically stayed pending the outcome of the appeal.

8. Serious Physical Injury
• Serious physical injury must be “serious” as in
a motor vehicle threshold issue. Bite wounds
and a torn hamstring with a 8 week PT
prescription is not “serious”, People v. Jornoz,
881 NYS2d 776 (4th Dep’t 2009).

9. Affirmative Defenses §123(4)
• 4. A dog shall not be declared dangerous if the court determines the
conduct of the dog (a) was justified because the threat, injury or damage
was sustained by a person who at the time was committing a crime or
offense upon the owner or custodian of the dog or upon the property of
the owner or custodian of the dog; (b) was justified because the injured,
threatened or killed person was tormenting, abusing, assaulting or
physically threatening the dog or its offspring, or has in the past
tormented, abused, assaulted or physically threatened the dog or its
offspring; (c) was justified because the dog was responding to pain or
injury, or was protecting itself, its owner, custodian, or a member of its
household, its kennels or its offspring; or was justified because the
injured, threatened or killed companion animal, farm animal or domestic
animal was attacking or threatening to attack the dog or its offspring.
Testimony of a certified applied behaviorist, a board certified veterinary
behaviorist, or another recognized expert shall be relevant to the court's
determination as to whether the dog's behavior was justified pursuant to
the provisions of this subdivision.

10. Appeal §123(5)
We will cover this later, in detail.

11. Owner’s liability- §123(6) and(7)
• 6. The owner of a dog who, through any act or omission, negligently
permits his or her dog to bite a person, service dog, guide dog or
hearing dog causing physical injury shall be subject to a civil penalty
not to exceed four hundred dollars in addition to any other
applicable penalties.
•
7. The owner of a dog who, through any act or omission, negligently
permits his or her dog to bite a person causing serious physical
injury shall be subject to a civil penalty not to exceed one thousand
five hundred dollars in addition to any other applicable penalties.
Any such penalty may be reduced by any amount which is paid as
restitution by the owner of the dog to the person or persons
suffering serious physical injury as compensation for unreimbursed
medical expenses, lost earnings and other damages resulting from
such injury.

12. Misdemeanor Penalty- §123(8)
8. The owner of a dog who, through any act or omission, negligently permits
his or her dog, which had previously been determined to be dangerous
pursuant to this article, to bite a person causing serious physical injury, shall
be guilty of a misdemeanor punishable by a fine of not more than three
thousand dollars, or by a period of imprisonment not to exceed ninety days,
or by both such fine and imprisonment in addition to any other applicable
penalties. Any such fine may be reduced by any amount which is paid as
restitution by the owner of the dog to the person or persons suffering serious
physical injury as compensation for unreimbursed medical expenses, lost
earnings and other damages resulting from such injury.
9. If any dog, which had previously been determined by a judge or justice to
be a dangerous dog, as defined in section one hundred eight of this article,
shall without justification kill or cause the death of any person who is
peaceably conducting himself or herself in any place where he or she may
lawfully be, regardless of whether such dog escapes without fault of the
owner, the owner shall be guilty of a class A misdemeanor in addition to any
other penalties.

13. Strict Liability - §123(10) – (13)
10. The owner or lawful custodian of a dangerous dog shall, except in the
circumstances enumerated in subdivisions four and eleven of this section, be strictly
liable for medical costs resulting from injury caused by such dog to a person,
companion animal, farm animal or domestic animal.
11. The owner shall not be liable pursuant to subdivision six, seven, eight, nine or ten
of this section if the dog was coming to the aid or defense of a person during the
commission or attempted commission of a murder, robbery, burglary, arson, rape in
the first degree as defined in subdivision one or two of section 130.35 of the penal
law, criminal sexual act in the first degree as defined in subdivision one or two of
section 130.50 of the penal law or kidnapping within the dwelling or upon the real
property of the owner of the dog and the dog injured or killed the person committing
such criminal activity.
12. Nothing contained in this section shall limit or abrogate any claim or cause of
action any person who is injured by a dog with a vicious disposition or a vicious
propensity may have under common law or by statute. The provisions of this section
shall be in addition to such common law and statutory remedies.
13. Nothing contained in this section shall restrict the rights and powers derived from
the provisions of title four of article twenty-one of the public health law relating to
rabies and any rule and regulation adopted pursuant thereto.

14. Strict Liability
• Strict liability may attach for medical expenses where
petition pleads sufficient cause and dog owner is given
a chance to appear (DON’T Default!!) Christensen v.
Lundsten, 863 NYS2d 886 (2008). Local court can order
judgment for medical expenses in an unlimited amount
arising from a dangerous dog attack (Id.)
• The possibility exists that one does not have to have a
previous determination that a dog is dangerous for
strict liability for medical expenses to attach, Budway v.
McKee, 27 Misc3d 316 (2010).

15. Reporting Requirement §123(14)
14. Persons owning, possessing or harboring
dangerous dogs shall report the presence of such
dangerous dogs pursuant to section two hundred
nine-cc of the general municipal law.
• MANY LOCAL MUNICIPALITIES ALSO HAVE
SIMILAR REQUIREMENTS.
• IF SO, THE COURT MAY ONLY ENFORCE WITHIN
COURT’S JURISDICTIONAL / GEOGRAPHIC LIMITS.

16. Proposed legislation!
6. The owner of a dog who, through any act or omission, negligently permits his or her dog to
bite a person, service dog, guide dog or hearing dog causing physical injury shall be subject to a
civil penalty not to exceed four hundred ONE THOUSAND dollars in addition to any other
applicable penalties.
7. The owner of a dog who, through any act or omission, negligently permits his or her dog to
bite a person causing serious physical injury shall be subject to a civil penalty UP TO A CLASS E
FELONY PUNISHABLE BY A FINE OF not to exceed one FIVE thousand five hundred dollars in
addition to any other applicable penalties. Any such penalty may be reduced by any amount
which is paid as restitution by the owner of the dog to the person or persons suffering serious
physical injury as compensation for unreimbursed medical expenses, lost earnings and other
damages resulting from such injury.
8. The owner of a dog who, through any act or omission, negligently permits his or her dog,
which had previously been determined to be dangerous pursuant to this article, to bite a
person causing serious physical injury, shall be guilty of a misdemeanor CLASS E FELONY
punishable by a fine of not more than three FIVE thousand dollars, or by a period of
imprisonment not to exceed ninety days TWO YEARS, or by both such fine and imprisonment
in addition to any other applicable penalties. Any such fine may be reduced by any amount
which is paid as restitution by the owner of the dog to the person or persons suffering serious
physical injury as compensation for unreimbursed medical expenses, lost earnings and other
damages resulting from such injury.
15. ANY PERSON FOUND TO BE IN VIOLATION OF SUBDIVISION SIX, SEVEN OR EIGHT OF THIS
SECTION AND WHO HAS EVER BEEN CONVICTED OF ANY FELONY OFFENSE UNDER TITLE H OF
PART THREE OF THE PENAL LAW SHALL BE SUBJECT TO FURTHER INVESTIGATION, INCLUDING,
BUT NOT LIMITED TO A SEARCH OF SUCH PERSON'S PERSONAL AND REAL PROPERTY AND
THE SEIZURE OF ANY ILLEGAL MATERIALS.

17. Related Statutes
• §123-a Exemption from civil liability for
destruction of dog during an attack.
• §123-b Creates an enhanced civil penalty for
owners where their dog attacks a service
animal.

18. Sample municipal provisions
• See handout page 43 for the Albany City code
provisions for animals kept within the City
limits.
• www.generalcode.com
• Your local municipal office or law library.
• Municipal websites often have updated codes.

19. Local Law Preemption
§ 122. Local laws or ordinances
1. Any municipality may enact a local law or ordinance upon the keeping or running at large of dogs and
the seizure thereof, provided no municipality shall vary, modify, enlarge or restrict the provisions of
this article relating to rabies vaccination and euthanization.
2. Such local law or ordinance may:
(a) impose penalties for violation of such restrictions to be recovered in a civil action in the name of
such municipality;
(b) provide for enforcement by fine or imprisonment for any such violation; or
(c) provide for the issuance pursuant to the criminal procedure law ? of an appearance ticket, or in lieu
thereof, a uniform appearance ticket, or in lieu thereof, a uniform appearance ticket and simplified
information, as provided in section one hundred fourteen of this article, by any dog control
officer, peace officer, acting pursuant to his special duties, or police officer, who is authorized by any
municipality to assist in the enforcement of this article for any such violation.

20. Due Process – Property Interest
• City denied dog owner due process in reaching a
decision to euthanize dog, and carrying out the
euthanization prior to owner receiving notice of
decision. Court held that the owner had a significant
property interest in the dog as the dog provided love,
companionship and friendship. The Court also found
that there was a significant risk for an erroneous
depravation of property as the hearing was not held
before a judge and the hearing officer’s decision did
not include a written decision which would have
allowed the owner to appeal. Van Patten v. City of
Binghamton, 137 F.Supp.2d 98 (2001).

21. The Client
• Retainer Agreement
• Clearly define role (will retainer encompass
appeal or trial or just a “plea”).
• Manage client expectations.
• Detail the risks of the “dangerous dog” label,
both for future civil liability and a future
dangerous dog hearing.
• It is a court of law, not a court of justice.
• How much justice can you afford.
– In a he said / she said with no witnesses, you WILL
need (should have) an expert. In all other cases its not
a bad idea….

22. The “plea bargain”
What to expect when you get to court.
• Sign in with the clerk, ask who is prosecuting the
dog cases. (Town Attorney, DCO, Local
Police, etc.)
• Meet with client, explain the process, court room
protocol, how long they will be there, where you
will be, etc.
• Meet with opposing counsel, attempt to reduce
the charges out of §123 to a local ordinance or
get the charges dismissed.
• Discuss plea with client and submit plea memo to
Judge.

23. Case study – “Mark’s” case
• Found at pages 4-14 of the materials
• Brought under former 121
• Lab mix named “Mia” accused of biting and causing
physical injury on one occasion – June 21st and a fall and
broken hip on July 10th
• Both injuries were to the same person
• Also charged with three failure to license under local law.
• A negotiated disposition of no finding by the court of a
“serious injury”, owner to construct a fence and keep dog
on leash at all times.
• No finding of liability for medical expenses and petitioner
signed a general release preventing a future civil suit.

24. Dealing with the Judge
• These cases can be “hot button” cases with local
communities.
• If a child is bitten, often entire streets or people
will show to the hearing. This puts pressure on
the judge.
• Emphasize “owner training” and “victim’s” right
to commence a civil action to judge (do this at
the bench away from the “victim” of course).
• Conditional pleas are very attractive to Judge, as
they stay in control of case. Offer to keep Judge
updated every 30 days, etc….

25. Dealing with the Judge
• Judge in Village and Town Courts are often not
lawyers. The are often unfamiliar with the details
of the Agriculture and Markets Law.
• Lawyers often don’t appear in Dog cases.
• Don’t intimidate the Judge, guide her through the
process at the bench or in chambers (especially if
prompted). Never correct her on the law in front
of the courtroom. She will appreciate your tact,
and you, not the Town attorney become the
“expert”.

26. The Trial
• Subpoena witnesses, include the DCO, force
the Town Attorney to prosecute the case, you
may get the “plea” you wanted.
• Get your expert.
• Prepare a trial brief. (Standard of Proof and
Burden of Proof).
• Make the DCO your witness, talk to her before
the hearing.(Did she see the attack? I doubt
it). (She probably talked at length with the
victim though).

27. The Trial
• Focus on owner’s knowledge of dog’s
propensities (this should match your brief).
• Try to place the dog in one of the Affirmative
Defenses under the law, if possible.
• Use your expert (the Town won’t have one).
• Close with the law, emphasize the law to the
judge, she may not know it…..and you are the
“expert”, remember.

28. The Trial
• Was the bite a playful “snap”, accidental or
spontaneous? Or prolonged, vicious and
unprovoked? Application of Fugazy, 82 Misc2d
135 (1974).
• “Attack” is any overt action by the dog tending to
cause reasonable apprehension of harm or injury
to the person, together with the apparent ability
in the dog to inflict the harm”, Univ. Towers
Assoc. v. Gibson, 18 Misc3d 349 (2007).

29. Procedure and Proof
• Village justice cannot issue dispositional order (must be a town justice).
People v. Beauvil (Justice Court, Village of Westbury 2008). I recommend
that everyone read this case for an excellent overview of the dangerous
dog statute from the perspective of a Judge who “gets it”. (materials page
98)
• Although the conduct of the owner most often results in the harm,
evidence of a owner’s behavior including allegations of alcohol, drug
abuse and his frequent brandishing of weapons was held to be irrelevant
and inadmissible in such a case, Morse v. Colombo, 31 AD3d 916 (3rd Dept.
2006).
• A proceeding under §123 (former 117) is neither civil nor criminal, but a
special proceeding of a civil nature. In Re: Foote, 129 Misc2 (1927).
• Civil Proceeding and the standard of proof is preponderance of the
evidence rather than proof of danger beyond a reasonable doubt. People
ex. Re. Laborie v. Habes, 52 Misc2d 768 (1967), see also, Gindalone v.
Zepieri, 86 Misc2d 79 (1976).
• “Negligence” as used in dangerous dog statute is defined as a failure to
use that degree of care that a reasonable person would have used under
the same circumstances, which gives rise to proximate injuries which are
reasonable foreseeable. Christensen v. Lundsten, 21 Misc3d 651 (2008).

30. Remedies
• Court cannot order banishment, Town of Huntington v. Mazzone 17
Misc3d 546 (2007).
• Breed specific legislation outlawed by Ag and Markets Law
§107(5), however, a dog’s breed while not being sufficient by itself
to establish recklessness can be considered in the overall analysis of
the dogs viciousness Loper v. Dennie 24 AD3d 1131 (3rd Dep’t
2005).
• An “attack” can be a bite, growls, barred teeth, aggressive
running, etc… (DO NOT NEED A BITE!!!) University Towers v. Gibson
18 Misc3d 349 (2007), etc…
• Serious physical injury must be “serious” as in a motor vehicle
threshold issue. Bite wounds and a torn hamstring with a 8 week PT
prescription is not “serious”, People v. Jornoz, 881 NYS2d 776 (4th
Dep’t 2009).

31. Remedies
• Court cannot resolve issues of negligence as
the petition does not plead or assert the
prima facia elements of negligence and the
petitioners did not request a civil
penalty, especially where the owners did not
have an opportunity to rebut a negligence
claim. Christensen v. Ludsten, 863 NYS2d 886
(2008).

32. Remedies
• Known vicious propensity to support
euthanization was not shown where dogs
barked and lunged in plaintiff’s direction. No
serious injury existed to support
euthanization. People v. Jornov, Id.

33. Motion to Vacate Judgment
• Can be used when the client retains an
attorney after the hearing.
• Difficult to get Judge to agree to reopen case,
especially after a hearing has been had with
witnesses summoned, etc.

34. Case study – “Michael’s” case
• Found at pages 41-42 of the materials
• Dangerous dog determination after client’s dog attacked a goat.
• Client, unrepresented at the time, consented to a dangerous dog
determination.
• Judge permitted the judgment to be vacated upon oral motion to
allow an amendment to the Order removing the requirement that
the dog only be walked by a person over the age of 21 or older, also
removed the requirement that the animal be muzzled.
• Argument that the Order was unlawfully issued as it discriminated
based upon age, also the Order could not be complied with by the
client as he was under 21 years old at the time.

35. Case study – “Mikhail’s” case
• In materials at pages 15 through 30
• Attorney hired post-judgment and in connection with a
“at large” ticket in 2009.
• Town attorney was attempting to utilize the at large
ticket as a basis for euthanization due to the prior
dangerous determination.
• Dangerous dog finding in 2008 after hearing.
• Client who could not read or speak English signed a
consent, after trial, to a dangerous dog determination.
• After many court appearances, behavior analysis of the
dog in question and obedience school the charges
were dismissed on the consent of the town attorney.

36. APPEALS

37. “This would be a nifty argument if
there was a procedural basis to raise
it, a legal basis to advance it, and a
factual basis to support it.”
First Alabama Bank v. First State
Insurance Co., 899 F2d 1045 (1990).

38. The Appeal and Stay - §123(5)
5. (a) The owner of a dog found to be a “dangerous dog” pursuant to this
section may appeal such determination, and/or the court's order concerning
disposition of the dog to the court having jurisdiction to hear civil appeals in
the county where the “dangerous dog” finding was made. The owner shall
commence such appeal by filing a notice of appeal with the appropriate court
within thirty days of the final order pursuant to this section. Court rules
governing civil appeals in the appropriate jurisdiction shall govern the appeal
of a determination under this section.
(b) Upon filing a notice of appeal from an order of humane euthanasia
pursuant to this section, such order shall be automatically stayed pending
final determination of any appeal. In all other circumstances, the owner of
the dog may make application to the court to issue a stay of disposition
pending determination of the appeal.
• Take the extra step to get the Order and serve it on opposing counsel, the
facility holding the dog and the DCO.

39. Taking the Appeal
• The rules for appealing from the City, Town and
Village Courts are different than those for an
appeal from Supreme Court.
• KNOW THE RULES!
• Short timelines within which to act.
• Consider and know if your local court will follow
the Rules of Criminal Procedure for the appeal!
Object! Civil Rules should apply.
• Sample forms starting at page 64 of the
materials.

40. • Civil Appeals from certain lower Courts are taken
to the Appellate Term in the First and Second
Departments and to the County Courts in the
Third and Fourth Departments.
• Other than County Courts, all of the Trial Courts
are regulated by a Court Act.
• In New York City Civil Court, it would be the New
York City Civil Court Act.
• City Courts outside of New York City, it’s the
Uniform City Court Act.
• In District Courts, it’s the Uniform District Court
Act and;
• For the Town or Village Justice Courts, it’s the
Uniform Justice Court Act.

41. The Acts in General
• In general, these Acts adopt the practice and
procedure pursuant to Article §55 of the CPLR
except as may otherwise be specified in the
particular Court Act of local rule which applies
to your jurisdiction. Essentially, however, the
same steps apply as would in perfecting an
appeal from a Final Order or Judgment in
Supreme Court to the Appellate Division.

42. Basic Steps in Taking an Appeal
1. Obtaining and filing the transcript.
2. Preparing, serving and filing record on
appeal.
3. serving and filing the Appellants and
Respondents respective briefs.
4. Placement of the appeal on the Appellate
calendar.
5. Argument or submission of the appeal.

43. Perfection
• The procedure for perfecting an appeal to a
County Court from a Town or Village Court
varies in each of the counties in New York
State.
• Its always a good idea to consult with the
Clerk of the County Court to determine
whatever procedures may be applicable in
your county. This is particularly so with
respect to the record on appeal.

44. Perfection con’t
• The City Court Clerk make and files a return with the
County Court Clerk pursuant to Section § 1704 of the
Uniform City Court Act after the Appellant serves and files a
notice of appeal with the City Clerk’s Office.
• At this point the Appellant must order the transcript from
the stenographer and pay any required transcription fees.
• Typically, a stenographer will require a deposit advanced
against an estimate of time required to produce the
transcript.
• The stenographer is required to furnish the original
transcript of the minutes to the City Court Clerk within ten
days after payment of the fees.

45. Bored yet?

46. Perfection con’t
• On receipt of the transcript the Clerk will then send Notices
of Receipt to the attorney for the Appellant fifteen (15)
days thereafter. The Appellant must make any proposed
amendments and serve those amendments together with a
copy of the transcript upon the Respondent. Thereafter,
within fifteen (15) days the Respondent has the
opportunity to make any proposed amendments or object
to the proposed amendments of the Appellant and to serve
those on Appellant’s counsel. Thereafter, the Appellant
obtains settlement of the case on a written notice of at
least four (4) days to the Clerk and to the attorney for the
Respondent, which is returnable before the Judge who
tried the case.

47. Case study – “Debra’s” case, or is it “Paul’s” case, or is it
“Debra and Paul’s” case?
• Shows the importance of having all the facts
before acting.
• Pro Bono case
• Client calls shortly before the 30 days runs to
appeal a stipulated disposition where the client
was represented by counsel. Client brings only
the charging tickets which list her as the owner.
Notice of Appeal is hastily prepared and served.
• Actual Order and Judgment are directed at her
boyfriend who actually owns the dog. This is
received by counsel after the 30 days has run.

48. • Amended Appeal is filed on consent.
• While Appeal is pending, client is alleged to
have not complied with the Court’s Order and
a motion is made by the Town Attorney to
restore the case to the calendar and to
reinstate the local law charges which had been
Adjourned in Contemplation of Dismissal
(ACOD) for six months.
• Subsequently the charges were able to be
reduced to a single charge of failure to license.
• The Appeal is still pending….

49. "Animals and Negligence" - What
every attorney should know.

50. Types of Negligence Cases
• Vet Malpractice
• Property Damage
• Premises Liability
• Automobile Accidents
• Bites (most common)
• Negligent Supervision
• Failure to Warn
• Falls from Horses (second most common)
• Kicks

51. Elements of Negligence
• Duty
• Breach of Duty
• Proximate Cause between injury and action
• Damages

52. Vicious or Dangerous Propensities
• In New York a cause of action exists in strict
liability, with no proof of negligence required on part of
the plaintiff, where a person keeps (harbors) an animal
with notice of the animal’s vicious propensities and
such animal injures a plaintiff.
• This liability is imposed regardless or ownership.
• The plaintiff is required to present proof that the
defendant had knowledge of the vicious propensity or
that a reasonable person would have discovered it –
Palumbo v. Nikirk, 59 AD3d 691 (2nd Dep’t 2009).

53. Allegations
• A complaint should allege:
– Facts;
– Statement that the defendant knowingly harbored the
animal;
– Statement that the defendant had knowledge of the
propensities;
– Statement that the defendant should have had knowledge of
the propensities;
– Statement that the animal injured the plaintiff;
– Statement that the plaintiff was lawfully on the defendant’s
property, in a public place or lawfully on other property;
– Statement that the injury rendered the plaintiff sick, sore,
lame, etc..
– Spousal or other derivative claim.

54. Affirmative Defenses
• An affirmative defense can be asserted which states that
the defendant was not keeping or harboring the animal.
• An affirmative defense can be raised that the animal was
being tormented, teased or abused – Leiner v. Fist Wythe
Ave. Service Station, 121 Misc. 2d 559 (NYC City Ct. 1983),
affirmed, 127 Misc. 2d 794.
• An affirmative defense can be raised that the plaintiff
himself had knowledge of the animal’s propensities and
brought the injury upon himself – Seiden v. A. Silmac Glass
Co., 251 AD2d 141 (1st Dep’t 1998).
• Express and implied assumption of the risk should be
raised. CPLR 1411 and 3018(b).

55. Summary Judgment – Owner’s lack of
knowledge
• Animal’s breed is not automatically determinative of viciousness – Rivers v. NYC
Housing Authority, 264 AD2d 342 (1st Dep’t 1999).
• Behavior which caused injury was not inherently vicious. Horse that was known to
be difficult to handle, for example – Timpanaro v. Topping Riding School, 575
NYS2d 933 (1991).
• Animal has never shown vicious propensities or the animal’s past behavior does
not amount to a vicious propensity (barking at neighbors)
• Natural reaction on part of animal is not a vicious propensity. Cat will bite when
grabbed by the scruff of the neck – Wignes v. Bottger, 518 NYS2d 936 (1987).
• Complaint was dismissed in action to recover for injuries sustained from dog bite
since bite alone, without provocation, and breed alone, was not sufficient to raise
question of fact as to vicious propensities; defendant and his girlfriend testified
that they did not experience any problems with dog prior to biting, and specifically
that dog did not display any act of aggression immediately prior., Malpezzi v.
Ryan, 28 AD3d 1036 (3rd Dep’t 2006).
• Whether or not the owner knew of the animal’s propensities should be viewed
and presented as an issue of fact (especially if you have the plaintiff).

56. Direct contact with animal not
necessary for liability to attach
• Example: Vicious dog is chasing a person who
runs into a road to avoid the dog and is struck
by a car.
• Polard v. United Parcel Service, 302 AD2d 884.

57. Can you / should you plead
negligence?
• There is a split between the departments as to
whether a plaintiff can recover for ordinary
negligence .
• First and Second Departments permit recovery.
Diamond-Fisher v Greto, 276 AD2d 413 (1st Dep’t
2000) and Colarusso v Dunne, 286 AD2d 37 (2nd
Dep’t 2001)
• Third and Fourth do not.
• Shaw v. Burgess, 303 AD2d 857 (3rd Dep’t 2003)
describes these differences.

58. • Courts have held that in limited circumstances a theory of
recovery for ordinary negligence may permit recovery.
• Must be a distinct act that the defendant should have done
or not done or a special enhanced duty of care.
• For competing views of claims for injuries caused by
agricultural animals compare St. Germain v. Dutchess
County Agriculture Society, 274 AD2d 146 (2nd Dep’t 2000)
and Bard v. Jahnke, 16 AD3d 896 93rd (3rd Dep’t 2005).
• Colarusso v. Dunne, 286 AD2d 37 (2001). Child bitten by
75lb dog which was permitted to freely wander around
owner’s daycare facility. Issue of fact existed as to whether
infant’s actions and dog’s response were foreseeable.
• Note, a child under 4 years old is incapable of being
responsible for his or her own actions, as a matter of
law, and the jury may be so instructed. Smith v.
Sapienza, 115 AD2d 723 (2nd Dep’t 1985).

59. “Beware of Dog” Signs
• Beware of Dog signs without more, or a prior
determination, does not establish a propensity for
dangerousness, especially in the Third Dept., Shaw v.
Burgess, 303 AD2d 857 (3rd Dep’t 2003) and Smedley v.
Ellinwood, 21 AD3d 676 (3rd Dep’t 2005).
• Jury may consider the sign, but it is not sufficient by
itself to create a propensity. The same applies for
animals that are chained or caged on a routine basis.

60. Premises / Landlord Liability
• Landlord who is aware of vicious propensities has a duty to protect
the public from the animal. Bates v. Constable, 4 Misc3d 810 (2004).
• A tenant who harbors a dangerous dog, even for security purposes,
will be held strictly liable to third persons for injuries, as will a
landlord who has leased the apartment with knowledge of the
propensities and does nothing to protect the public. Strunk v.
Zoltanski, 62 NY2d 572 (1984).
• If the landlord has no knowledge, actual or constructive, there is no
liability imposed. Meyers v. Haskins, 140 AD2d 923.
• Liability will not be imposed on the landlord where the attack
occurs off the rented premises. Terrio v. Daggett, 208 AD2d 1163.

61. Transfer of ownership
• No liability will attach to a prior owner for
injuries caused post-transfer IF the owner
informed the person of the animal’s
dangerous propensities.
• Hosmer v. Carney, 228 NY 73.

62. Every dog gets one bite theory
• Not in New York
• Perrotta v. Picciano, 186 AD 781 (1st Dep’t
1919) and its progeny.

63. Breed or type “discrimination”
• Evidence of the inherent propensities of one
particular breed of animal is inadmissible,
Bohm v. Nystrum, 208 AD2d 668 (dog).
• Landes v. H.E. Farms, Inc., 169 AD2d 446
(horse).
• Bard v. Jahnke (bull).

64. Farm Animal Negligence
• A case of negligence can be made and maintained
against the owner of a horse or cow which is
unsupervised or uncontrolled on a public road,
where the animal causes damage to or collides
with a person or vehicle. Johnson v. Waugh, 244
AD2d 594 (3rd Dep’t 1997).
• Theory being that horses do not wander on
roadways absent negligence.
• Presumption is rebuttable if it is shown that the
animal’s wandering is not caused by the owner’s
negligence.

65. Wild Animals and Negligence
• Owner or keeper of a wild animal has an
absolute duty to prevent animal from injuring
persons or property.
• Exemptions exist for common carriers and
municipalities or society charged by the
legislature to maintain a zoo (does not apply
to a zoo run for profit).
• Reasonable care is the standard for these
exceptions.

66. Questions