Cheryl Dobinski, Appellant,v.George O. Lockhart, et al., Respondents.BriefN.Y.March 26, 20150 To be Argued by: DENNIS J. BISCHOF, ESQ. Time Requested for Argument: (15 Minutes) STATE OF NEW YORK Court of Appeals APL-2014-00290 CHERYL DOBINSKI, Plaintiff-Appellant, vs. GEORGE O. LOCKHART and MILAGROS LOCKHART, Defendants-Respondents. Erie County Index No.: 2012/800381. Appellate Division Docket Number: CA 14-00100. BRIEF FOR PLAINTIFF-APPELLANT CHERYL DOBINSKI DENNIS J. BISCHOF, LLC Attorneys for Plaintiff-Appellant Cheryl Dobinski 6720 Main Street, Suite 250 Williamsville, New York 14221 Telephone: (716) 630-6500 Facsimile: (716) 630-6501 DENNIS J. BISCHOF, ESQ. Of Counsel Date of Completion: January 5, 2015. BATAVIA LEGAL PRINTING, INC.— Telephone (866) 768-2100 Table of Contents Table of Contents ........................................................................................................ i Table of Authorities ................................................................................................... ii Preliminary Statement ............................................................................................... 1 Questions Presented ................................................................................................... 3 Statement ofFacts ...................................................................................................... 4 Argument ................................................................................................................... 8 Point 1: Hastings v. Sauve, 21 N.Y.3d 122 (2013) is applicable to the case at bar ....................................................................................... 8 Point II: The Lockharts are not completely free of all liability as a matter of law ..................................................................................... 12 Point III: Triable issues of fact preclude summary judgment ............................................................................... 19 Conclusion .................................................................................... 23 Table of Authorities CASES Amado v Estrich, 182 A.D.2d 1109 (1992) ........................................................ 10,14 Bard v. Jahnke, 6 N.Y.3d 592 (2006) .............................................................. 8, 9, 15 Buicko v. Neto, 112 A.D.3d 1046 (2013) ............................................... 11 Collier v. Zambito, 1 N.Y.3d 444 (2004) .............................................. 11, 13, 14, 15 Crowley's Milk Co. v. Klein, 24 A.D.2d 920 (1965} ............................................. 19 Culliper v. Traffic Markings, Inc., 259 A.D.2d 992 (1999) .................................... 19 Doerr v. Goldsmith, 110 A.D.3d 453 (2013) .......................................................... 16 Esteve v. Abad, 271 A.D. 725 (1947) .................................................................... 20 Hastings v. Sauve, 21 N.Y.3d 122 (2013) ........................................... 8, 9, 11, 13, 16 Moskowitz v. Garlock, 23 A.D.2d 943 (1965) ....................................................... 19 Myers v. MacCrea, 61 A.D.3d 1385 (2009) ............................................. 11 Negri v. Stop and Shop, Inc., 65 N.Y.2d 625 (1985) ............................................. 20 Petrone v. Fernandez, 12 N.Y.3d 546 (2009) .................................................... 14, 15 Scotto v. Marra, 23 A.D.3d 543 (2005) ............................................................. 10, 14 Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957) .................... 20 Smith v. Reilly, 17 N.Y.3d 895 (2011) .................................................. 11 Wanger v. Zeh, 45 Misc.2d 93 (1965), affd 26 A.D.2d 729 (1966) ....................... 19 Zuckerman v. City ofNew York, 49 N.Y.2d 557 (1980) .............................. 12 ii STATUTES LocalLawNo.1 oftheyear2005 ............................................................... 10, 14,17 TREATIES PJI 2:25 ............................................................................................................. 10, 17 PJI 2:90 .................................................................................................................... 21 PJI 3:17 ................................................................................................................... 22 PJI 3:18 ................................................................................................................... 22 iii Preliminary Statement On May 20, 2012, plaintiff-respondent bicyclist Cheryl Dobinski (hereinafter "Mrs. Dobinski") was severely injured after colliding with unleashed dogs owned and controlled by defendant-appellants George 0. Lockhart and Milagros Lockhart (hereinafter "the Lockharts"). R. 25. Suit was filed in the Supreme Court of Erie County on May 20, 2013. R.25. The Lockharts joined issue May 23, 2013. R. 30. On August 14, 2013, The Lockharts filed a motion for summary judgment seeking dismissal ofMrs. Dobinski's case alleging that they were completely free from all liability as matter of law. The Hon. Diane Y. Devlin, J.S.C. denied the motion in her decision dated November 1, 2013, with an Order having been granted November 15, 2013. The Trial Court ruled that issues of fact as to the negligence of the Lockharts in containing, controlling, and training of their dogs in regards to chasing or pursuing vehicles both on and off their property precluded summary judgment. The Trial Court also held that ordinary negligence principals apply to the case at bar in light of developing case law. The Lockharts appealed Justice Devlin's Order. By Memorandum and Order dated October 3, 2014, the Appellate Division, Fourth Department unanimously reversed Justice Devlin's Order on the law, the Lockhart's motion was granted, and the amended complaint was dismissed. Mrs. Dobinski filed a motion seeking leave to appeal to the Court of Appeals on October 20,2014. Mrs. Dobinski's motion for leave to appeal was granted on November 25, 2014. Mrs. Dobinski's preliminary appeal statement was filed December 1, 2014. 1 The Court of Appeals in Hastings v. Sauve, 21 N.Y.3d 122 (2013) held that a landowner and/or the owner of an animal may be liable under ordinary tort-law principles when that animal is negligently allowed to stray from a defendants' property on which the animal is kept. The Court of Appeals noted that the question of whether the same rule applies to a dog must await a different case. In Hastings, the Court noted 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. Id. This Court found 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". I d. In the case at bar the Lockharts negligently allowed their dogs to stray from their property where they were kept. The dogs entered the roadway through the negligence, carelessness, and recklessness of the Lockharts. The Lockharts failed to exercise due care to keep their dogs out of the public roadway. The Lockharts were negligent in allowing their dogs to enter the roadway. 2 Questions Presented 1. Should a landowner and/or owner of a dog be held liable under ordinary tort-law principles when that dog is unleashed in violation of the local leash law and otherwise negligently allowed to stray from defendants' property on which the animal is kept? The Trial Court answered "yes". 2. Are the Lockharts completely free from all liability as a matter of law? The Trial Court answered "no". 3. Do issues of fact preclude summary judgment in the case at bar? The Trial Court answered "yes". 3 Statement of Facts The Lockharts knowingly violated the local leash law. R. 173. R. 222. R 271-278. The Lockharts knew that their dogs can go into the roadway adjacent to their farm house and interfere with traffic. R. 158 and R 220. The Lockharts trained and conditioned the two dogs in question to chase vehicles at a high rate of speed. R. 213. In doing so, the Lockharts turned their dogs into an instrumentality of harm. Mrs. Dobinski was severely injured as a direct result of the Lockharts' negligence. R. 55. The unleashed dogs were trained to chase both Mr. and Mrs. Lockhart while they drove a four-wheeler, capable of running a distance of no less than one-half mile and running at speeds of20 to 30 MPH. R. 230 and 231. Both Mr. and Mrs. Lockhart testified that their dogs have previously chased vehicles - the Lockharts' four wheeler, for example. R. 230 and 231. On May 20, 2012, Mrs. Dobinski was riding her bicycle upon a public roadway that abutted the Lockharts property. The incident occurred in front of the Lockharts farm on Salamanca Road also known as route 98 in the Town of Franklinville New York. R. 143 and R. 149. The Lockhart farm has many animals including cows, horses, feral cats, and dogs. R. 149. They used to have chickens, goats, and pigs on the farm as well. R. 164. The Lockhart farm house was only 50 feet from Route 98. R. 190. Mrs. Dobinski was severely injured after colliding with the Lockharts' unleashed, unlicensed dogs which were permitted to charge into the roadway and interfere with traffic. R. 55 and 63. Mrs. Dobinski sustained a broken right collarbone requiring surgical intervention on May 24, 2012. R. 281. The two dogs in question- Harvey and Ralphy - are purebred German Shepherds. R. 162 and 218. The Lockharts are very familiar with that breed. R. 218. The German Shepherds are very protective and are there to protect the 4 Lockharts' farm house. R. 165. Mr. Lockhart knows and is aware that Ralphy "has to test it that one step" "like a kid" when it comes to darting out into the roadway and interfering with traffic. R 218. He knows that both dogs like to wrestle a lot in the yard, rolling one another around, jumping around, chasing things. R. 219. The record established that the Lockharts had knowledge of their dogs' vicious propensities. The Lockharts know that their dogs can go into the roadway adjacent to their farm house and interfere with traffic. R. 158 and R 220. One such dog, Molly, was killed in the roadway by a snowplow. R. 158 and R 220. In 2007, Mr. Lockhart owned a husky named Sherman that was also killed by a car in the roadway. R. 197 and R. 220. Mr. Lockhart routinely let his dogs run loose to play around- unleashed. R. 222. Only Cooper and Juno were leashed -Harvey and Ralphy were not leashed. R. 222 and R. 226. All of his dogs are illegal- none ofhis dogs were licensed. R. 222. Harvey and Ralphy are healthy, strong, robust, and large. R. 160, 161, 180, 181,229,230, and 231. Both Harvey and Ralphy together with their dog Juno were trained to chase Mr. Lockhart around on his four-wheeler. R. 227. Mr. Lockhart exercises these dogs "hard". R. 228. For at least three years leading up to the incident Mr. Lockhart has been having Harvey and Ralphy chase him on his four-wheeler. R 229. The unleashed dogs were trained to chase both Mr. and Mrs. Lockhart while they drove a four-wheeler, running for a least one-half mile and running at speeds of20 to 30 MPH. R. 160, 161, 180, 181, 229, 230, and 231. The Lockharts did this a number of times once or twice a month in the winter and more frequently in the summer. R. 232. After the incident Mr. Lockhart purchased leashes for Ralphy and Harvey and they no longer allow both dogs out at the same time. R. 226. Mrs. Lockhart also knows that her dogs can run off her property if they are not properly leashed. R. 160. Mrs. Lockhart is very familiar with German 5 Shepherds and has performed research on the breed. R. 165 and 170. Mrs. Lockhart allowed her two German Shepherd dogs to run loose without a leash every day, multiple times per day. R. 176-177. She has a kennel for all her dogs but she didn't use it that often. R 177 and 322. She didn't possess or use leashes for the German Shepherds Harvey and Ralphy. R. 182. The German Shepherds would have been protecting Mrs. Lockhart, Mr. Lockhart, their three daughters and Mrs. Lockhart's brother, nieces and nephew who were on the premises at the time R.185. Mrs. Lockhart's daughter was yelling at Ralphy at the time of the incident. R. 186. Both Harvey and Ralphy were running together at the time of the incident and immediately after the incident. R. 187. When the Lockharts shake the handle on their door both dogs will race each other back to the farm house. R. 187. After the incident the two dogs were racing each other even though Mrs. Lockhart hadn't signaled the dogs by wiggling the door knob. R. 188. The Lockharts subsequently purchased leashes for both of the German Shepherds following the incident. R. 188. They also changed their routine because of this incident. R. 189. Mrs. Lockhart knows that Harvey and Ralphy cannot go out together because it is too dangerous and she now keeps them in the kennel more often. R. 189. The Lockhart farm house is 50 feet from the road. R. 190. The Lockharts know their dogs would and could run unleashed for hundreds of feet. R 191. They know that the road in front of her farm house is busy with trucks, tractors, horses, motorcycles, bicycles, pedestrians, joggers, and runners. R. 193. Mrs. Lockhart admits that she was not properly supervising her dogs and her children at the time of the incident. R. 200. The German Shepherds play with each other, race each other, wrestle, jump at each other and they were hard to control together as a tandem. R. 208. The dogs can run fast. R. 210. 6 Mrs. Lockhart's daughter was attacked by a neighbor's pit bull. R. 146 and 14 7. Upon information and belief, Mrs. Lockhart has filed a claim against neighbor Roseanne Burrell, the owner of the pit bull. Mrs. Lockhart lives on a farm with cows, horses, feral cats, and dogs. R. 149. She used to have chickens, goats, and pigs. R 164. She keeps some ofher dogs leashed, but not the two that injured Mrs. Dobinski. R. 156 and 159. Mrs. Dobinski describes the incident in detail. R. 63. She describes how the dogs came darting into the road, attacking her on her bike, and causing a collision which knocked her off her bike and onto the roadway. R. 63. Mr. Dobinski was 10 yards behind Cheryl at the time of the incident. R. 67. They were in training for the Ironman Triathlon at the time. R. 59. 7 Argument Point I- Hastings v. Sauve, 21 N.Y.3d 122 (2013) is applicable to the case at bar. The Court of Appeals in Hastings v. Sauve, 21 N.Y.3d 122 (2013) held that a landowner and/or the owner of an animal may be liable under ordinary tort-law principles when that animal is negligently allowed to stray from a defendants' property on which the animal is kept. ld. The Court of Appeals noted that the question of whether the same rule applies to a dog must await a different case. I d. In Hastings, the Court noted 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. Id. This Court found 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". I d. The rule in Hastings v. Sauve, 21 N.Y.3d 122 (2013) should be applied to the case at bar. When injuries are caused by a defendant's dog, a landowner/dog owner's liability should not be solely determined by the application of the rule articulated in Bard v. Jahnke, 6 N.Y.3d 592 (2006) and its progeny. Mrs. Dobinski probably could have avoided a cow (ala Hastings), however, it was impossible for her to avoid the Lockharts' dogs who charged at her at a high rate of speed. This Court held that the rule of Bard "does not bar suit for negligence when a farm animal has been allowed to stray from the property where it is kept". Hastings infra. The defendants in Hastings failed to keep their fence in good repair which allowed their cow to interfere with traffic. ld. In the case at bar, the defendants 8 failed to use a leash in violation of the local leash law which allowed their dogs to interfere with traffic. Unlike Bard and its progeny, the case at bar involves an unexcused leash law violation. Also, the Lockharts knew that their dogs could go into the roadway adjacent to their farm house and interfere with traffic. The Lockharts negligent acts and omissions in the case at bar includes the fact that they trained and conditioned their dogs to chase vehicles. Additionally, the Lockharts negligently failed to properly control their dogs: the dogs should have been either (1) on a leash, (2) in their fenced/enclosed area, or (3) within the Lockhart's home. Lastly, the Record in the case at bar raises triable issues of fact precluding summary judgment. The record, when read most favorably to Mrs. Dobinsk would support a finding that both defendants were negligent in allowing their dog to enter the roadway. Summary judgment in defendants' favor should not have been granted. The Hastings rule should be applied to the case at bar. The Lockharts knowingly violated the local leash law violation. The Lockharts knew that their dogs could go into the roadway adjacent to their farm house and interfere with traffic -they've had dogs killed when interfering with traffic prior to Mrs. Dobinski's incident. The Lockharts trained and conditioned their dogs to chase vehicles at a high rate of speed over long distances thus creating instrumentalities of harm. The trap was thus set when the Lockharts failed to properly control their dogs. Justice Devlin was correct when she ruled that the Record in the case at bar raises triable issues of fact precluding summary judgment. In the case at bar the Lockharts negligently allowed their dogs to stray from their property where the dogs were kept. The dogs entered the roadway through the negligence, carelessness, and recklessness of the Lockharts. The Lockharts failed to exercise due care to keep their dogs out of the public roadway. The Lockharts were negligent in allowing their dogs to enter the roadway. 9 The Lockharts had a duty to control their dogs. The Lockharts breached that duty when they permitted their dogs to run into the roadway in interfere with traffic. The Lockhart's breach of duty was a substantial factor in causing Mrs. Dobinski's injuries. But for the Lockhart's failure to control their dogs, Mrs. Dobinski would not have been injured. It is uncontested that the Lockharts violated the leash law of the Town of Franklinville. R 271-278. Local Law No. 1 of the year 2005. Amado v Estrich, 182 A.D.2d 1109 (1992) holds that a leash-law violation constitutes evidence of negligence. New York has long recognized the liability of dog owners in instances where a leash-law violation is coupled with affirmative canine behavior. Scotto v. Marra, 23 A.D.3d 543 (2005)(dog bite). The Lockharts failed to comply with and thus violated the statutory standard of care, to wit: the Town of Franklinville leash law, Local Law No. 1 of the year 2005. The Lockharts' violation of that statute was a proximate cause of Mrs. Dobinski' s injuries. But for the Lockharts' failure to keep their dogs on a leash, Mrs. Dobinski was seriously injured. Therefore, the Lockharts are liable for Mrs. Dobinski's damages. See PJI 2:25. The leash law was designed to protect Mrs. Dobinski from this very incident. The Lockharts' violation of the leash law led directly to Mrs. Dobinski's injuries and damages. Why have a leash law? What good is a leash law if people like the Lockharts are fully exonerated and found not negligent as a matter of law? The Lockharts kept some of their dogs on leashes- why not all of them? Other dogs were enclosed in a fenced in area/pen - why not the two German Shepherds? The dogs should have remained indoors and, when outdoors, the dogs should have been properly controlled. There is no justification for the Lockharts' failure to comply with the local leash law. Not only did the Lockharts violate the Town's leash law- they didn't even possess leashes for the two dogs involved in the incident -the Lockharts were also 10 independently negligent. As in Hastings, an animal was permitted to run off the Lock:harts' property through the negligence of the owners of the property and the owners of the animals. I d. The Appellate Division Fourth Department dismissed the amended complaint holding that defendant established that they lacked actual or constructive knowledge that the dog had a propensity to interfere with traffic. However, Mrs. Dobinski's claims are broader than claims governed by Collier v. Zambito, 1 N.Y.3d 444 (2004) and Smith v. Reilly, 17 N.Y.3d 895 (2011). In the case at bar the Lock:harts knowingly violated the local leash law, negligently failed to control their dogs, and negligently conditioned their dogs to chase vehicles. Additionally, it is further submitted that Mrs. Dobinski submitted proof sufficient to raise triable issues of fact as to whether the Lock:harts possessed actual or constructive knowledge that the dogs possessed vicious propensities. The record establishes that the Lock:harts' dogs possessed a proclivity to act in a way that put others at risk of harm. The Appellate Division cites Smith v. Reilly, 17 N.Y.3d 895 (2011) and Myers v. MacCrea, 61 A.D.3d 1385 (2009). These cases are distinguishable from the case at bar because: (1) the case at bar involves an unexcused leash law violation, (2) the Lock:harts knew that their dogs could go into the roadway adjacent to their farm house and interfere with traffic, (3) the Lock:harts trained and conditioned their dogs to chase vehicles, (4) the Lockharts negligently failed to properly control their dogs, and ( 5) the Record in the case at bar raises triable issues of fact precluding summary judgment. Buicko v. Neto, 112 A.D.3d 1046 (2013) is distinguishable because the defendants in that case attempted to control their dog by use of an "invisible fence". In the case at bar the defendants made no effort to properly restrain or control the dogs that injured Mrs. Dobinski, despite the fact that they had outdoor 11 pens available for the dogs and they could have easily put all their dogs on a leash or in one of their buildings on premises. The proof submitted in the case at bar establishes that triable issues of fact exists as to whether the defendants possessed actual or constructive knowledge that the dogs had a propensity to interfere with traffic. The Fourth Department held that the proof submitted in opposition to the motion failed to raise a triable issue of fact as to whether the defendants possessed actual or constructive knowledge that the dogs had a propensity to interfere with traffic. Zuckerman v. City ofNew York, 49 N.Y.2d 557 (1980) is distinguishable because Zuckerman involved a bare attorney's affirmation submitted in opposition to defendant's motion. In the case at bar Mrs. Dobinski submitted a significant amount of evidence establishing triable issues of fact exists as to whether the defendants possessed actual or constructive knowledge that the dogs had a propensity to interfere with traffic. Point II - The Lockharts are not completely free of all liability as a matter of law. The Lockharts trained their dogs Harvey and Ralphy to chase vehicles at high speed. The Lockharts knew that their dogs would routinely run into the roadway - at least two of the Lockharts' dogs were killed by a motor vehicle after the dogs had run into the roadway and interfered with traffic in front of their farm house. The Lockharts farm house is very close to the road- 50 feet away. The Lockharts knowingly violated the leash law- they didn't even own or use leashes for the two dogs that injured Mrs. Dobinski. Both Milagros and George Lockhart admit that they let the subject dogs run around without leashes and they did this routinely, on a daily basis, multiple times per day. The Lockharts knew that there 12 were bikes in the roadways and that they live on a busy road. The triable issues of fact precluding summary judgment in this case are innumerable. The record established that the Lockharts had knowledge of their dogs' vicious propensities. Both Mr. and Mrs. Lockhart testified that their dogs had previously chased vehicles- the Lockharts' four wheeler. Both Mr. and Mrs. Lockhart testified that their dogs had previously interfered with traffic. It is well established 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". Collier v. Zambito, 1 N.Y.3d 444 (2004). 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". I d. The behavior of the dog must reflect "a proclivity to act in a way that puts others at risk of harm" and it must "result in the injury giving rise to the lawsuit". I d. In the case at bar, the Lockharts' dogs possess and manifested vicious propensities including the propensity to do acts that might endanger the safety of the persons and property of others, to wit: big, strong, healthy unleashed dogs that can run fast, are trained to chase vehicles, interfere with traffic on the nearby roadway, are protective of the Lockharts family and home, etc. The behavior of the Lockharts dogs reflected a proclivity to act in a way that put others at risk of harm if the dogs weren't kept on a leash or otherwise properly controlled. The vicious propensities of Harvey and Ralphy resulted in the injury giving rise to Mrs. Dobinski' s lawsuit. If the dogs were in their pen or on a leash this incident would have never occurred. Two dogs died in the roadway after having been struck by motor vehicles because the Lockharts routinely failed to properly control their animals. 13 Knowledge of vicious propensities may be established by proof of prior acts of a similar kind. I d. The record is replete with the Lockharts knowledge of prior similar activities. Also relevant is whether the dog's owner chose to restrain the dog, and "the manner in which the dog was restrained". I d. The Lockharts failed to properly restrain their dogs. Possessing a dog for the purpose of protecting the dog owner's person and property can also give rise to an inference that an owner had knowledge of the dog's vicious propensities. Id. In the case at bar the Lockharts admit that their dogs were protective of the farm house and their family -they are guard dogs, pure bred German Shepherds which were bred in a manner that fostered the vicious propensities these dogs possessed which ultimately led to Mrs. Dobinski' s injuries and damages. Once knowledge is established an owner faces strict liability for the harm the dog caused. Id. The Lockharts violated the leash law of the Town ofFranklinville. R 271- 278. LocalLawNo.1 oftheyear2005. AmadovEstrich, 182A.D.2d 1109 (1992) holds that a leash-law violation constitutes evidence of negligence. New York has long recognized the liability of dog owners in instances where a leash- law violation is coupled with affirmative canine behavior such as a dog bite. Scotto v. Marra, 23 A.D.3d 543 (2005). Under Petrone v. Fernandez, 12 N.Y.3d 546 (2009), when injuries are caused by a domestic animal, an owner's liability is determined solely by application of the rule articulated in Collier infra. I d. Collier imposes strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities. Id. The Lockharts' violation of the local leash law in the case at bar is relevant because it is coupled the vicious propensities of the Lockharts' dogs. In Petrone, the dog in question "did not bite or threaten or apparently make any contact whatsoever with plaintiff'. I d. In the case at bar, the dogs threatened and made contact with the plaintiff. The dog in 14 Petrone, in fact, neither had vicious propensities nor behaved in a manner that reflected a proclivity to act in a way that put others at risk of harm and that the dog's alleged conduct that resulted in plaintiffs injuries was not vicious or reasonably foreseeable. Id. In contrast, the unleashed dogs in the case at bar had vicious propensities and behaved in a manner that reflected a proclivity to act in a way that put others at risk of harm. Additionally, Harvey and Ralphy's conduct that resulted in plaintiffs injuries was vicious and reasonably foreseeable. The leash law, standing alone, was insufficient in Petrone because the dog in Petrone did not possess vicious propensities. The Court of Appeals has signaled a modification of the Collier rule when it held that a landowner and/or the owner of an animal may be liable under ordinary tort-law principles when that animal is negligently allowed to stray from defendants' property on which the animal is kept. This would be consistent with Justice Pigott's concurring opinion in Petrone infra that negligence by an owner- even without knowledge concerning a domestic animal's vicious propensities - may create liability. Id. In Judge Smith's dissent in Bard v. Jahnke, 6 N.Y.3d 592 (2006), Judge Smith warned that a finding that no negligence cause of action can ever lie in these types of cases "leaves New York with an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions". Id. at 599, R.S. Smith, J., dissenting. Recently, the Court of Appeals in Hastings v. Sauve, 21 N.Y.3d 122 (2013) held that a landowner and/or the owner of an animal may be liable under ordinary tort-law principles when that animal is negligently allowed to stray from defendants' property on which the animal is kept. The Court of Appeals notes that the question of whether the same rule applies to a dog must await a different case. The Court notes that an accident caused by an animal's aggressive or threatening behavior is "fundamentally distinct" from one caused by an animal owner's 15 negligence in permitting the animal from wandering off the property where it was kept. I d. 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. The Lockharts negligently allowed their dogs to stray from their property where they were kept. The Lockharts' dogs possessed a proclivity to act in a way that put others at risk of harm. The dogs entered the roadway through the negligence, carelessness, and recklessness of the Lockharts. The Lockharts failed to exercise due care to keep their dogs out of the public roadway. The Lockharts were negligent in allowing their dogs to enter the roadway. In Doerr v. Goldsmith, 110 A.D.3d 453 (2013), Plaintiff bicyclist, was injured when he fell off his bike to avoid striking the defendant's unleashed dog which was running across traffic near the Seventh A venue exit at Central Park South. The dog was trying to reach the defendant owner who had called out to her boyfriend to put her dog down so that it could run to her. In moving for summary judgment, the defendant dog owner contended that her dog did not have vicious propensities and that plaintiffs claim of negligence was not actionable as a matter of law. The First Department affirmed the trial court's Order denying the owner's motion for summary judgment as against her. In an exception to the strict liability rule, the First Department held that the blanket rule does not apply to situations where the negligent actions of a person turns an animal into an instrumentality of harm. The accident in Doerr occurred because of the conduct of the defendants in releasing the dog into traffic, rather than because of the dog's own instinctive, volitional behavior. 16 Additionally, the Lockharts failed to comply with and thus violated the statutory standard of care, to wit: the Town of Franklinville leash law, Local Law No. 1 of the year 2005. The Lockharts' violation of that statute was a proximate cause of Mrs. Dobinski' s injuries. Therefore, the Lockharts are liable for Mrs. Dobinski's damages. See Pll 2:25. The leash law was designed to protect Mrs. Dobinski from this very incident. The Lockharts' violation of the statute lead to Mrs. Dobinski's injuries and damages. Not only did the Lockharts violate the Town's leash law- they didn't even possess leashes for the two dogs involved in the incident - the Lockharts were also independently negligent. The Lockharts trained and conditioned their dogs in a unique manner- having the dogs chase them on a four wheeler. It's not as if Harvey and Ralphy were crippled, slowed down by age, disabled by arthritis, or otherwise incapable of interfering with traffic on the nearby roadway. Rather, the dogs were affirmatively trained by the Lockharts to do what they did. This case doesn't involve a Chi Wawa- these were two big, strong, pure bred German Shepherds. The Lockharts knew of the vicious propensities of Harvey and Ralphy which led to Mrs. Dobinski's injuries. Both dogs could run 30 MPH. The defendants trained both dogs to chase vehicles at high speed. This is not normal canine behavior. The Lockharts negligently trained and conditioned their dogs to chase vehicles with wheels, like Mrs. Dobinski' s bike. The Lockharts knew that Harvey and Ralphy could run 30 MPH for at least one-half mile. The Lockharts knew that they lived on a busy public street which was only 50 feet away from their farm house. If the dogs could run 30 MPH for one-half they are certainly capable of running 30 MPH into the public roadway which runs directly next to their property. In other words, the Lockharts both had actual and constructive notice and knowledge of the vicious propensities which lead to Mrs. Dobinski's injuries. 17 The Lockhart also created instrumentalities of harm by training their dogs to chase vehicles at a high rate of speed. The Lockharts claim that there is no evidence that Harvey or Ralphy had run into the roadway before the date of incident misstates the facts and misapplies the law relative to this case. Both Mr. and Mrs. Lockhart had actual knowledge that unleashed dogs which they owned would run into the roadway in front of their farm house and interfere with traffic - this occurred prior to the incident involving Mrs. Dobinski. In the past- before Mrs. Dobinski was injured - it was the defendants' unleashed dogs Molly and Sherman that went into the roadway and were subsequently killed by motor vehicles as a result of having interfered with traffic. Before it was unleashed Molly and unleashed Sherman who ran into the roadway and were killed. This time it was unleashed Harvey and unleashed Ralphy that ran into the roadway and it was Mrs. Dobinski who almost got killed. It was not a question of IF the Lockharts unleashed dogs would run into the roadway abutting their property but rather a question of WHEN it would happen again. The Lockharts that their dogs Harvey and Ralphy would run around together when they were unleashed and that these dogs could run into the nearby public roadway which abutted their property and was only 50 feet from their house. The law does not require that the plaintiff prove that defendants had actual knowledge that Harvey and Ralphy had previously run into the road and interfered with traffic. Defense counsel again misstates the law in this regard. Rather, a dog owner 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. The Lockharts self-serving allegations of ignorance and/or their dogs alleged lack of vicious propensities is not dispositive. The jury might fmd that the defendants are lying about whether Harvey and Ralphy ever went off premises. It is for a jury to decide, however, not the court as a matter of law. 18 The Lockharts collusion with the neighbor Mrs. Burrell raises many issues of fact that preclude summary judgment and further evidences that the Lockharts know that they are liable and that they are actively attempting to avoid responsibility. The Lockharts have a claim pending against their neighbor Mrs. Burrell relative to Mrs. Burrell's pit bull which attacked the Lockharts' child. The Burrell affidavit which was prepared by defendants' attorney is written proof of the collusion. The manifest collusion between Ms. Burrell and the defendants can neither be condoned nor ignored. Point III - Triable issues of fact preclude summary judgment. The Trial Court properly ruled that issues of fact preclude summary judgment in the case at bar. Summary judgment is a drastic remedy that should be granted only if there is no doubt as to the existence of any triable issues of fact. Culliper v. Traffic Markings, Inc., 259 A.D.2d 992 (1999); Moskowitz v. Garlock, 23 A.D.2d 943 (1965). The granting of the motion "is the procedural equivalent of a trial". Crowley's Milk Co. v. Klein, 24 A.D.2d 920 (1965). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a 'day in court' ... Summary judgment is a harsh remedy and the requirement of the rule should be strictly complied with in order to entitle a party to that relief ... To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as to the existence of such issues." Wanger v. Zeh, 45 Misc.2d 93 (1965), affd 26 A.D.2d 729 (1966). 19 As stated in Esteve v. Abad, 271 A.D. 725 (1947), the court's function on a summary judgment motion represents "[i]ssue-finding rather than issue- determination". See Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). When the court reaches the conclusion that a genuine issue of fact is presented, such determination requires the denial of the application for summary judgment. Id. The proof submitted in the case at bar establishes that the Lockharts are not entitled to summary judgment as a matter of law. In looking at the facts herein in the light most favorable to the non-moving party, it is clear that the Lockharts' application was properly denied. See Negri v. Stop and Shop, Inc., 65 N.Y.2d 625 (1985). When deciding a motion for summary judgment, the Court must view the evidence in a light most favorable to the non- moving party and must give the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence presented on motion. Id. In the case at bar Mrs. Dobinski was injured when she was thrown over the handle bars of her bike while she was riding in the street when the Lockhart dogs ran into the street and collided with her. Prior to the incident the Lockharts' dogs behaved and were actually trained by the Lockharts to act in a manner reflecting a proclivity to act in a way that put others at risk of harm which resulted in the injury giving rise to the lawsuit herein. The Lockharts knew and/or should have known of their dogs propensities to interfere with traffic in the street. The Lockharts had actual and constructive knowledge and Notice of their dog's vicious propensities and the likelihood that their unleashed dogs would interfere with traffic. The Lockharts knew that their dogs behaved in a manner reflecting a proclivity to act in a way that put others at risk of harm which resulted in the injury giving rise to the lawsuit herein. The Lockharts trained their dogs to chase motor vehicles at a high rate of speed. 20 The Lockharts admit that they let their dogs run loose on a daily basis multiple times per day in direct violation of the local leash laws. An 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. Collier infra. The evidence submitted in the case at bar establishes that the Lockharts had notice of their dogs proclivity to act in a way that created the risk of harm to Mrs. Dobinski that resulted in her injuries. The Lockhart dogs constituted a nuisance and hazard to the surrounding neighborhood as set forth in Mrs. Dobinski' s pleadings and bill of particulars. The Lockharts, their agents, servants, or employees, were negligent in that they caused, allowed, and permitted their premises to become and remain in a defective, dangerous, improper, and negligent condition; in that they failed to take reasonable or any precaution for the safety of Mrs. Dobinski; in that they caused, allowed, and permitted their dogs to run wild which was a dangerous and defective condition in and around their premises; that the Lockhart premises remained in a dangerous and otherwise negligent condition so that Mrs. Dobinski was caused to be injured in front of the Lockharts' farm house, sustaining the injuries herein alleged; the Lockharts failed to warn of the dangerous, defective, and trap like condition; the Lockharts failed to barricade the dangerous, defective, and trap like condition; the Lockharts failed to comply with pertinent codes, rules, regulations, and ordinances, and /or complying with acceptable standards; improper maintenance, improper upkeep; the Lockharts created the defective condition. The record establishes that (1) the premises were not reasonably safe; (2) that the Lockharts were negligent in not keeping the premises in a reasonably safe condition; and (3) that the Lockharts negligence in allowing the unsafe condition to exist was a substantial factor in causing Mrs. Dobinski's injuries and damages. See Pll 2:90. 21 The Lockhart dogs constituted a public nuisance. The Lockhart dogs constituted an obstruction which unreasonably and substantially interfered with public use of the street and interfered with access to and use and enjoyment of the street causing Mrs. Dobinski personal injury, material harm, and damages. The Lockharts unreasonably and substantially interfered with the public right to use the street in front of their premises by failing to properly control and restrain their dogs. See Pn 3:17. The Lockhart dogs constituted an absolute public nuisance. The Lockharts unlicensed dogs constituted an obstruction which unreasonably and substantially interfered with public use of the street and interfered with access to and use and enjoyment of the street causing Mrs. Dobinski personal injury, material harm, and damages. The Lockharts unreasonably and substantially interfered with the public right to use the street in front of their premises by failing to properly control and restrain their unlicensed dogs. See Pll 3:18. 22 Conclusion For the foregoing reasons, it is respectfully submitted that the order of the Appellate Division should be reversed and the Lockhart's motion for summary judgment denied. Dated: January 5, 2015 Respectfully submitted, Dennis J. Bis of, Esq. Attorney for laintiff-Appellant Mrs. Dobinski 6720 Main Street, Suite 250 Williamsville, New York 14221 (716) 630-6500 23