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THE RECENT COURT OF APPEALS DECISION ALLOWING A VETERINARIAN’S OFFICE TO BE SUED IN NEGLIGENCE WHEN A PATRON WAS BITTEN BY A DOG IN THE WAITING ROOM DID NOT EXTEND TO A RESTAURANT OWNER WHO ALLOWS PATRONS TO BRING THEIR LEASHED DOGS TO THE RESTAURANT; THE STRICT LIABILITY “NOTICE OF VICIOUS PROPENSITIES” STANDARD APPLIED TO THE RESTAURANT OWNER (SECOND DEPT).

The Second Department, in an extensive, full-fledged opinion by Justice Genovesi, reversing Supreme Court, determined the strict liability “notice-of-vicious-propensity” requirement applied to a restaurant which allowed patrons to bring their leashed dogs. Here the infant plaintiff was bitten by a patron’s dog. The negligence cause of action was not dismissed by Supreme Court pursuant to a recent Court of Appeals decision which held that a veterinarian’s office could be sued in negligence by a patron bitten by another patron’s dog. The Second Department refused to extend the Court of Appeals ruling re: a veterinarian to a restaurant owner:

On this appeal, we are presented with the opportunity to examine the extent to which the Court of Appeals’ opinion in Hewitt v Palmer Veterinary Clinic, PC (35 NY3d 541), serves to alter the standard applied in actions to recover damages for personal injuries caused by domesticated animals. Specifically, we address those actions commenced against individuals other than the animal’s owner. In Hewitt, the Court of Appeals engaged in an intensely fact-specific inquiry wherein it determined that the vicious propensities notice requirement is not necessary in a negligence action against a veterinary practice or other such places with “specialized knowledge relating to animal behavior” (id. at 548). We conclude that the holding of Hewitt, in line with the jurisprudence of this area of law, does not serve to carve out a path for ordinary negligence actions against all premises owners, in contravention of the vicious propensities notice requirement. Cantore v Costantine, 2023 NY Slip Op 05708, Second Dept 11-15-23

Practice Point: Although the Court of Appeals recently held standard negligence principles could be applied to a dog bite in a veterinarian’s office, here the strict liability “notice of vicious propensities” requirement applied to a restaurant owner who allows patrons to bring their leashed dogs into the restaurant.

 

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