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Keeping Animals In Cages On the Same Lot as Petitioner’s Home, as Part of the Operation of a Business, Constituted a “Home Occupation” Requiring Approval by the Zoning Board

The Third Department determined the zoning board of appeals had properly ruled that petitioner was conducting a business inside his home without approval, a so-called “home occupation.”  The fact that large animals were kept outside petitioner’s home in permanent cages was found to be within the scope of the relevant definition of an “accessory structure:”

Petitioner contends that the activities occur in the cages on his property, not in any building on the property or any offsite location. There is no evidence in this record to show that business activities are conducted “inside the residence” or “at off-site locations,” so such activities must be conducted in “a legally constructed accessory building” to fall within the ordinance (Zoning Law [2008] of the Town of Mayfield § 202 [A] [42]). An “[a]ccessory [s]tructure” is defined as a building “which is located on the same lot” as, and “the use of which is incidental to that of,” a one- or two-family dwelling (Zoning Law[2008] of the Town of Mayfield § 202 [A] [1]). “Building” is defined as a one- or two-family dwelling or portion thereof “intended to be used for human habitation” but also “shall include accessory structures thereto” (Zoning Law [2008] of theTown of Mayfield § 202 [A] [10]). While cages would not generally be considered buildings, the Zoning Law contains a section on “[w]ord [u]sage” stating that “[t]he word ‘building’ includes the word ‘structure'” (Zoning Law [2008] of the Town of Mayfield § 201). That provision clarifies any ambiguity concerning the definitions of the relevant terms here, as a cage that is built into the ground – like these cages apparently are – can be considered a structure, and the cages are on the same lot as and incidental to the use of petitioner’s residence … .The code enforcement officer did not assert that the cages were illegally constructed. Thus, as petitioner is carrying on business activities in legally constructed accessory structures, he is operating a home occupation. Matter of Salton v Town of Mayfield Zoning Board of Appeals, 516523, 3rd Dept 4-3-14

 

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Violation of a Local Law Did Not Demonstrate a Horse Pen Constituted a Private Per Se Nuisance

The Third Department determined summary judgment was properly denied for a nuisance cause of action.  The fact that a horse pen was 100 feet from a home, and was therefore in violation of a local law requiring a distance of 500 feet, did not demonstrate per se nuisance:

The per se nuisance claim is based upon the undisputed location of plaintiffs’ horse pen about 100 feet from defendants’ home, in alleged violation of a local law that requires such pens to be separated from dwellings by at least 500 feet (see Local Law No. 1 [2010] of Village of Valley Falls § 9).  We disagree with defendants that the declaration in the local law that such a violation is a “nuisance” (see Local Law No. 1 [2010] of Village of Valley Falls § 7) is sufficient, without more, to establish their claim of nuisance per se….  A showing that the pen is unlawful excuses defendants only from proving that plaintiffs’ actions were negligent or intentional; the other elements of a nuisance cause of action must still be shown … .  A private nuisance claim requires a showing of “intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property” … . Defendants did not prove entitlement to summary judgment on the per se nuisance claim, as they relied exclusively on the alleged local law violation and offered no proof that the horse pen’s placement caused a substantial or unreasonable interference – and notably, such determinations “ordinarily turn[] on questions of fact”… . Overocker v Madigan, 516957, 3rd Dept 1-9-14

 

Growling and Baring Teeth Insufficient to Raise Question of Fact About a Dog’s Vicious Propensities

The First Department noted that a dog’s growling and baring its teeth is not sufficient evidence to raise a question of fact re: the dog’s vicious propensities:

No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities … . Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint.   Gervais v Laino, 2013 NY Slip Op 08819, 1st Dept 12-31-13

 

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Horse Deemed a “Companion Animal”/Aggravated Cruelty to Animals Conviction Upheld

The Third Department affirmed defendant’s convictions, which stemmed from the killing of a horse.  The court determined the horse was a “companion animal” within the meaning of the Agricultural and Markets Law and, therefore, the elements of aggravated cruelty to animals were proven:

…[D]efendant claims that the charge of aggravated cruelty to animals was jurisdictionally defective for failure to allege a material element of the crime, arguing that the horse was not a “companion animal” (Agricultural and Markets Law § 353a [1]…).  However, horses are excluded from the statutory definition of companion animals only when they are “‘[f]arm animal[s]’ . . . raised for commercial or subsistence purposes” (Agricultural and Markets Law § 350 [4]).  Any domesticated animal, including a horse, may be a companion animal where, as here, it is not kept for such purposes and is “normally maintained in or near the household of the owner or person who cares for [it]” (Agricultural and Markets Law § 350 [5] ….  Likewise, there was no jurisdictional defect in the charge of criminal mischief in the second degree by intentionally damaging the property of another, as a companion animal is property (see Penal Law § 145.10…). People v Lohnes, 104483, 3rd Dept 12-19-13

 

No Question of Fact About Whether Defendant Was Strictly Liable for Actions of Dog—Bicyclist Injured When Dog Ran Into Path of Bicycle

The Third Department determined plaintiff did not raise a question of fact about whether a dog had a propensity to chase bicyclists or run into the path of bicyclists. Therefore, the plaintiff, a bicyclist injured when defendant’s dog (Dudley) ran into plaintiff’s path, did not raise a question of fact about whether defendant was strictly liable for the actions of defendant’s dog:

The sole viable claim against the owner of a dog that causes injury is one for strict liability … .  To establish strict liability, “there must be evidence that the animal’s owner had notice of its vicious propensities” … .  “Vicious propensities include the ‘propensity to do any act that might endanger the safety of the persons and property of others in a given situation'” … . Indeed, “a dog’s habit of chasing vehicles or otherwise interfering with traffic could be a ‘vicious propensity'” … .  Therefore, in a case such as this, in the absence of proof that Dudley has a history of chasing bicycles or vehicles or otherwise interfering with traffic, “there is no basis for the imposition of strict liability” … .  Notably, evidence that a dog has a history of barking and running around is insufficient, by itself, to establish a vicious propensity, as such actions “are consistent with normal canine behavior” … . Buicko v Neto, 516669, 3rd Dept 12-5-13

 

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Question of Fact About Whether Rider Assumed Risk of Being Kicked by Horse—Allegations Defendant Heightened Risk

The Third Department there was a question of fact whether plaintiff assumed the risk of being kicked by defendant’s horse.  Plaintiff alleged the risk was heightened by defendant’s actions:

While it has been recognized that participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  “‘[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct'” … .

Here, plaintiffs have raised triable issues of fact by offering evidence that defendant’s attendant assisted plaintiff in mounting her assigned horse, and the attendant then positioned the head of her horse within six inches of the tail of the horse in the line in front of her.  The attendant then was called away and, in leaving, he ducked under the head of plaintiff’s horse, causing it to nudge the horse in front of it.  The horse in front then kicked back, striking plaintiff in the leg and injuring her. Defendant’s co-owner acknowledged that the positioning of horses is an important safety concern and that horses should be spaced approximately one horse length apart.  Thus, while being kicked by a horse is an obvious risk of horseback riding, and plaintiff, although an inexperienced rider, was aware of the risk, issues of fact exist as to whether defendant’s alleged actions in positioning the horses and then ducking under the head of plaintiff’s horse heightened the risk of injury to an inexperienced rider… . Valencia … v Diamond F Livestock, Inc…, 516434, 3rd Dept 10-24-13

 

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Negligence of Dog Owners In Calling A Dog Which Ran Into Bicyclist’s Path Is Actionable

Over a two-justice dissent, the First Department determined a lawsuit alleging the negligence of dog owners could go forward.  Plaintiff, a bicyclist, was injured when plaintiffs caused their dog to run into plaintiff’s path. After noting a change in the Court of Appeals’ approach to animal-caused injuries that are not the result of vicious propensities, the court wrote:

Recently, however, the Court of Appeals revisited Bard and Petrone when it decided an appeal of Hastings (94 AD3d 1171). In reversing the grant of summary judgment to the defendants, the Court recognized that an accident caused by an animal’s “aggressive or threatening behavior” is “fundamentally distinct” from one caused by an animal owner’s negligence in permitting the animal from wandering off the property where it was kept (21 NY3d 122, 125 [2013]). The Court stated that the consequence of a blanket rule against negligence claims in cases where animals displayed no vicious propensities “would be to immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property” (id.). * * *

Defendants’ actions can be likened to those of two people who decide to toss a ball back and forth over a trafficked road without regard to a bicyclist who is about to ride into the ball’s path. If the cyclist collided with the ball and was injured, certainly the people tossing the ball would be liable in negligence. Simply put, this case is different from the cases addressing the issue of injury claims arising out of animal behavior, because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that most proximately caused the accident. Doerr v Goldsmith, 2013 NY slip Op 06442, 1st Dept 10-3-13

 

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Question of Fact About Whether Horse Owner Liable for Injuries to Novice Rider

The Fourth Department affirmed the denial of summary judgment to the owners of a horse which allegedly brushed up against a tree, injuring the novice rider.  The court explained that the “knowledge of vicious propensities” doctrine applied here because there was evidence the defendants knew the horse had a propensity to ride too close to trees, the general release signed by plaintiff was void as against public policy, and the defendants did not establish as a matter of law that plaintiff had assumed the increased risk of horseback riding alleged here:

It is well settled that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … .  “[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit” (id. at 447).  In support of their motion, defendants submitted the deposition testimony of plaintiff, wherein she testified that defendant and a guide employed by the Ranch instructed plaintiff to push off of the trees if the horse walked too closely to the trees on the single-file woodland trail.  * * *

Even assuming, arguendo, that defendants conclusively demonstrated that plaintiff executed the release, we conclude that, under these circumstances, where the riding lesson was ancillary to the recreational activity of horseback riding, General Obligations Law § 5-326 renders the release void as against public policy… .* * *

Finally, defendants failed to establish as a matter of law that plaintiff assumed the risk of horseback riding.  Horseback riding “[p]articipants will not be deemed to have assumed unreasonably increased risks” … .  Here, defendants submitted evidence that raised a question of fact whether they unreasonably increased the risks of horseback riding by using a bitless bridle on their horses, which did not provide plaintiff with the ability to control the horse, and by failing to give plaintiff, who was a novice rider, adequate instructions on how to control the horse … .  Vandeerbrook v Emerald Springs Ranch…, 855, 4th Dept 9-27-13

 

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“Professional Judgment Rule” Did Not Preclude Lawsuit; Plaintiff Bitten by Police Dog While Assisting Police in a Search

The plaintiff was bitten by a police dog while assisting the police in a search.  Supreme Court denied defendants’ motion for summary judgment and the Second Department affirmed, explaining there was a question of fact about whether the “professional judgment rule” applied:

“The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions” … . However, “the immunity afforded a municipality for its employee’s discretionary conduct does not extend to situations where the employee, a police officer, violates acceptable police practice” … .

Here, the defendants did not establish their prima facie entitlement to judgment as a matter of law. A question of fact with respect to whether the conduct of the dog’s handler was consistent with acceptable police practice was presented by the defendants’ evidentiary submissions … . Accordingly, summary judgment was properly denied … .  Newsome v County of Suffolk, 2013 NY Slip Op 05805, 2nd Dept 9-11-13

 

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Automobile Policy Does Not Cover Injury to Passerby Bitten by a Dog Which Was Inside a Vehicle

In finding that the underinsured endorsement for automobile insurance did not cover injuries incurred when plaintiff was bitten by a dog through the window of a car as she walked past, the Second Department explained:

Use of an automobile encompasses more than simply driving it, and includes all necessary incidental activities such as entering and leaving its confines … . To satisfy the requirement that it arose out of the “ownership, maintenance or use of” a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury … . “[T]he vehicle itself need not be the proximate cause of the injury,” but “negligence in the use of the vehicle must be shown, and that negligence must be a cause of the injury” … . “To be a cause of the injury, the use of the motor vehicle must be closely related to the injury” … .

Here, as a matter of law, Reyes’s injuries did not result from the inherent nature of Kazimer’s vehicle, nor did the vehicle itself produce the injuries. The injuries were caused by Kazimer’s dog, and the vehicle merely contributed to the condition which produced the injury, namely, the location or situs for the injury. Allstate established that a causal relationship between the car and the incident was lacking, and Reyes failed to rebut that showing … .  Matter of Allstate Ins Co v Reyes, 2013 NY Slip Op 05566, 2nd Dept 8-7-13

 

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