Wolfgang Doerr, Respondent,v.Daniel Goldsmith, Defendant, Julie Smith, Appellant.

Brief

N.Y.Mar 26, 2015

APL-2014-00032 New York County Clerk’s Index No. 103840/10 Court of Appeals STATE OF NEW YORK WOLFGANG DOERR, Plaintiff-Respondent, against DANIEL GOLDSMITH, Defendant, and JULIE SMITH, Defendant-Appellant. >> >> BRIEF FOR DEFENDANT-APPELLANT MISCHEL & HORN, P.C. One Whitehall Street, 10th Floor New York, New York 10004 212-425-5191 Appellate Counsel to: HOEY, KING, EPSTEIN, PREZIOSO & MARQUEZ Attorneys for Defendant-Appellant Of Counsel: Scott T. Horn Naomi M. Taub Date Completed: May 15, 2014 To Be Argued By: Scott T. Horn Time Requested: 15 Minutes i STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal pursuant to CPLR 5602(b)(1) and CPLR 5713 because permission for leave to appeal on a certified question of law was granted by the Appellate Division. ii TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF QUESTION PRESENTED FOR REVIEW ............................... 4 STATEMENT OF FACTS ........................................................................................ 5 A. THE ACCIDENT ............................................................................................ 5 B. THE LITIGATION .......................................................................................... 6 C. THE APPELLATE DIVISION’S FIRST DECISION AND ORDER ............ 7 D. PLAINTIFF’S RENEWAL MOTION ............................................................ 7 E. THE APPELLATE DIVISION’S SECOND DECISION AND ORDER ...... 7 F. DEFENDANT’S MOTION FOR LEAVE TO APPEAL ............................... 9 G. THE ORDER GRANTING LEAVE TO APPEAL ........................................ 9 LEGAL ARGUMENT ............................................................................................. 10 THE APPELLATE DIVISION ERRED IN FAILING TO GRANT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION ...................................... 10 A. PLAINTIFF’S THEORY OF RECOVERY IS LIMITED TO NEW YORK’S TRADITIONAL STRICT LIABILITY CLAIM .......................... 11 B. THIS COURT’S DECISION IN HASTINGS DID NOT CREATE A COMMON-LAW NEGLIGENCE CAUSE OF ACTION FOR INJURY CAUSED BY A DOMESTIC HOUSEHOLD PET ...................................... 14 CONCLUSION ........................................................................................................ 19 iii TABLE OF AUTHORITIES Cases Bard v. Jahnke, 6 NY3d 592 [2006] ................................................................ passim Bernstein v. Penny Whistle Toys, Inc., 10 NY3d 787 [2008] ...................... 2, 10, 12 Collier v. Zambito, 1 NY3d 444 [2004] .......................................................... passim Furlong v. Winne & McKain Company, 166 AD 882 [3d Dept. 1915] .................. 16 Hastings v. Suave, 21 NY3d 122 [2013] ......................................................... passim Hosmer v Carney, 228 NY 73 [1920] ...................................................................... 11 Loeffler v. Roberts, 136 AD2d 824 [3d Dept. 1988] ............................................... 16 Petrone v Fernandez, 53 AD3d 221 [2d Dept 2008] ............................................... 13 Petrone v. Fernandez, 12 NY3d 546 [2009] .................................................... passim Smith v. Reilly, 17 NY3d 895 [2011] .............................................................. passim Smith v. Reilly, 83 AD3d 1492 [4th Dept., 2011] ................................................... 12 Unger v. The Forty-Second Street and Grant Street Ferry Railroad Company, 51 NY 497 [1873] ...................................................................................................... 16 Vrooman v Lawyer, 13 Johns 339 [1816] ............................................................... 11 Young v. Wyman, 159 AD2d 792 [3d Dept. 1990], affd. 76 NY2d 1009 [1990] .. 16 1 PRELIMINARY STATEMENT In this action to recover damages for personal injuries sustained when Plaintiff fell from his bicycle after colliding with Defendant Julie Smith’s dog in New York City’s Central Park, said Defendant appealed from a Decision and Order of the Supreme Court, New York County (Mendez, J.), dated September 7, 2011, which denied her motion for summary judgment. By Decision and Order, dated April 16, 2013, the Appellate Division reversed the lower court’s order and awarded summary judgment to Defendant, reasoning that while New York allows for recovery under strict liability theory for injuries caused by a pet dog’s dangerous propensities, New York does not recognize a common-law negligence cause of action under the circumstances at bar (R. 285-288). By Decision and Order, dated October 3, 2013, a divided panel of the Appellate Division recalled and vacated its April 16, 2013 Decision and Order, and denied Defendant’s motion for summary judgment (R. 275-284). The basis for the majority’s decision was that this Court’s decision in Hastings v. Suave (21 NY3d 122, 125-126 [2013]), had engendered a new theory of liability against dog owners that was separate and distinct from the traditional rule that a dog owner is strictly liable for injuries caused by a dog’s known dangerous propensities. In the dissenting opinion, Justice Andrias, joined by Justice DeGrasse, stressed that while 2 this Court’s decision in Hastings (supra), had allowed for damages caused by wayward farm animals, there had been no change in the law with regard to pet dogs. By Order dated February 6, 2014, the Appellate Division granted Defendant leave to appeal and certified the following question of law this Court (R. 274): “Was the order of Supreme Court, as affirmed by this Court, properly made?” As will be shown in the following pages, the lower courts’ adoption of a heretofore unrecognized common-law negligence cause of action is contrary to the controlling precedent of this Court. That is, a plaintiff’s right of recovery under these circumstances is limited to the long-standing strict liability rule that is predicated upon a requisite showing of the dog’s dangerous propensities, as articulated in Collier v. Zambito (1 NY3d 444 [2004]) (see also, Smith v. Reilly, 17 NY3d 895 [2011]; Petrone v. Fernandez, 12 NY3d 546 [2009]; Bernstein v. Penny Whistle Toys, Inc., 10 NY3d 787 [2008]; Bard v. Jahnke, 6 NY3d 592 [2006]). In fact, this Court, as recently as 2009, declined to open the Pandora’s Box that is inherent in the Appellate Division’s determination when it expressly rejected the notion that a common-law negligence cause of action may be maintained against a dog owner (see, Petrone v. Fernandez, 12 NY3d 546, supra). This Court’s decision in Hastings (supra), did not overrule the long-standing rule 3 of strict liability, nor did it create a new common-law negligence cause of action for injuries caused by a pet dog. In any event, even if the Court extends the rule in Hastings to pet dogs, the negligence claim recognized therein was plainly limited to situations where an animal “is negligently allowed to stray from the property on which the animal is kept” (21 NY3d 122, 125, supra). Such circumstances are not extant in the matter at bar. In this regard, it is uncontested that Defendant’s dog was lawfully permitted to be off-leash while inside the park at the time the incident occurred (R. 227). Accordingly, unlike the defendants in Hastings (supra), there is no basis for concluding that Defendant had failed to keep her dog “within the property where it was kept” or otherwise failed to take care to keep her dog “out of the roadway or off of other people’s property” (Hastings v. Suave, 21 NY3d 122, 125, supra). Accordingly, it is respectfully submitted that the question of law certified to this Court must be answered in the negative. 4 STATEMENT OF QUESTION PRESENTED FOR REVIEW The following question of law was certified to this Court: “Was the order of Supreme Court, as affirmed by this Court, properly made?” 5 STATEMENT OF FACTS A. THE ACCIDENT On May 31, 2009, at approximately 7:00 a.m., Plaintiff, a competitive triathlete, was cycling “the loop” in New York City’s Central Park when he struck a dog owned by Defendant, Julie Smith [“Defendant”] (R. 17, 80-87, 104-107, 231-232). It is uncontested that Defendant-Smith’s dog was legally permitted to be off-leash inside of the park at the time of the accident (R. 227). Further, Plaintiff candidly testified that he had previously seen unleashed dogs run across the Central Park “loop” from time to time (R. 102). According to Plaintiff, he observed Defendant-Smith on the left side of the loop and Defendant-Goldsmith on the right side, roughly 30 to 50 yards ahead of Plaintiff’s rapidly approaching bicycle (R. 106-107).1 Plaintiff testified that while Defendant-Goldsmith held the dog, Defendant-Smith called for it to come to her (R. 106, 108-109). Plaintiff then saw the dog in the middle of the road, but was unable to avoid colliding with it and being propelled off the bicycle (R. 109). Defendant-Smith testified that the park was empty on the morning in question as she and Defendant-Goldsmith walked her dog into Central Park (R. 221, 238). As they reached the crosswalk to cross the “loop,” Defendant- 1 Plaintiff testified that he normally travels “around eighteen miles an hour” when cycling the “loop” (R. 93). 6 Goldsmith paused momentarily and Defendant-Smith continued into the crosswalk after determining that “there was nobody to be seen anywhere” (R. 231, 238). Defendant-Smith then turned back and called the dog to join her in crossing the loop (R. 231). Defendant-Smith then heard Plaintiff yell and immediately collide with her dog (R. 234-235). Defendant-Smith stated that the incident occurred in a matter of “seconds” (R. 235), and that “the cyclist came out of nowhere” (R. 238).2 B. THE LITIGATION By Summons and Verified Complaint, dated March 3, 2010, Plaintiff commenced the within common-law negligence action against Defendants (R. 16- 21). Plaintiff did not plead a strict liability cause of action (R. 16-21). By Verified Answer, dated May 5, 2010, Defendant-Smith joined issue (R. 22-24). 3 Defendant-Smith [hereinafter “Defendant”] thereafter moved for summary judgment on the grounds that: [1] there is no evidence that her pet dog had known dangerous propensities; and [2] in the absence thereof, New York does not recognize a common-law negligence cause of action to recover damages for personal injuries caused by a pet dog (R. 14). 2 According to Defendant-Smith, there was a “yield to pedestrians” sign facing the direction that Plaintiff was coming from (R. 235). 3 Defendant Daniel Goldsmith never appeared in the action. 7 By Decision and Order, dated September 7, 2011, the Supreme Court, New York County (Mendez, J.), denied Defendant’s motion for summary judgment (R. 5-7). Defendant appealed therefrom (R. 3-4). C. THE APPELLATE DIVISION’S FIRST DECISION AND ORDER By Decision and Order, dated April 16, 2013, the Appellate Division reversed the lower court’s order and awarded Defendant summary judgment, holding that while New York allows for recovery under strict liability theory for injuries caused by a pet dog’s dangerous propensities, New York does not recognize a common-law cause of action under the circumstances at bar (R. 285- 288). D. PLAINTIFF’S RENEWAL MOTION By Notice of Motion, dated May 8, 2013, Plaintiff, inter alia, moved to renew/reargue, contending that there had been a change in the relevant law engendered by this Court’s decision in Hastings v. Suave (21 NY3d 122 [2013]).4 E. THE APPELLATE DIVISION’S SECOND DECISION AND ORDER By Decision and Order, dated October 3, 2013, the Appellate Division, by a 3-2 vote, recalled and vacated its April 16, 2013 Decision and Order based upon this Court’s decision in Hastings (supra) (R. 275-284). In issuing its new 4 In Hastings (supra), this Court determined that the long-standing rule of strict liability based upon an animal’s dangerous propensities “does not bar a suit for negligence when a farm animal has been allowed to stray from the property where it is kept” (21 NY3d 122, 124, supra). 8 determination, which denied Defendant’s motion for summary judgment, the Appellate Division reasoned, in pertinent part, as follows (R. 280): We recognize that the Hastings Court did not decide whether to apply the holding to dogs at that time. However, that should not be an impediment to denying summary judgment in this case * * * It is not about the particular actions of an animal that led to a person’s injury. Rather, it is about the actions of a person that turned an animal into an instrumentality of harm. Here, the dog was in the control of defendants at all times in the split second before the accident occurred. Had Smith not called the dog, and Goldsmith not let it go, plaintiff would have ridden past them without incident. The Appellate Division was divided, however, prompting a dissent written by Justice Andrias and joined by Justice DeGrasse, which stated, in pertinent part, as follows (R. 283-284): [In Hastings, supra,] the Court of Appeals limited its decision to farm animals and made clear that until such time as it addresses the issue, the strict liability rule still applies to cases involving household pets. Accordingly, this Court should adhere to the established rule that New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a pet dog. I do believe that leave to appeal to the Court of Appeals should have been granted to determine whether it will extend the Hastings rule and depart from the strict liability rule where an accident may be deemed to have been caused by some direct action of a dog’s owner rather [than] the dog’s natural propensities. However, and more to the point, I do not deem it appropriate for us to presume that the Court of Appeals will do so under the circumstances before us, given that this case does not involve failure to keep a farm animal within “the property where it was kept” (citing Hastings, 21 NY3d at 125) or a failure to make sure that an animal was not in an area where it was not legally permitted to be. While cows may be expected to be kept on the farm, the Court of Appeals has thus far declined to impose liability where an owner permits a dog to be unleashed in a public place based on a theory of common-law negligence. 9 F. DEFENDANT’S MOTION FOR LEAVE TO APPEAL By Notice of Motion, dated November 1, 2013, Defendant moved for leave to appeal to the Court of Appeals, on a certified question of law. G. THE ORDER GRANTING LEAVE TO APPEAL By Order dated February 6, 2014, the Appellate Division granted Defendant’s motion for leave to appeal and certified the following question of law for this Court to determine (R. 274): “Was the order of Supreme Court, as affirmed by this Court, properly made?” 10 LEGAL ARGUMENT THE APPELLATE DIVISION ERRED IN FAILING TO GRANT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE COMMON-LAW NEGLIGENCE CAUSE OF ACTION The Appellate Division order, affirming the Order of the Supreme Court and denying Defendant’s motion for summary judgment, was erroneous as a matter of law. It is the well-settled rule in this State, recently re-affirmed by this Court, that a plaintiff injured by a pet dog may pursue recovery under a strict liability theory based upon the animal’s dangerous propensities, but may not pursue “a companion common-law cause of action” under negligence theory (Bard v. Jahnke, 6 NY3d 592, 599 [2006]; see also, Smith v. Reilly, 17 NY3d 895 [2011]; Petrone v. Fernandez, 12 NY3d 546 [2009]; Bernstein v. Penny Whistle Toys, Inc., 10 NY3d 787 [2008]; Collier v. Zambito, 1 NY3d 444 [2004]). New York’s strict liability rule, re-affirmed many times over, remains the controlling rule of law in this case and it was not overruled by this Court in Hastings v. Suave (21 NY3d 122, supra). Moreover, this Court’s decision in Hastings did not create a new common-law negligence cause of action in favor of those alleged to have been injured by a pet dog. Rather, the Court in Hastings (supra), merely held that “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as 11 that term is defined in Agriculture and Markets Law § 108(7) – is negligently allowed to stray from the property on which the animal is kept [emphasis supplied].” A. PLAINTIFF’S THEORY OF RECOVERY IS LIMITED TO NEW YORK’S TRADITIONAL STRICT LIABILITY CLAIM New York’s strict liability rule in cases of this ilk is well-settled in this State. Indeed, in Collier v. Zambito (1 NY3d 444, supra), this Court noted that “[f]or at least 188 years (see, e.g. Vrooman v Lawyer, 13 Johns 339 [1816]), the law of this state has been 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 (see, Hosmer v Carney, 228 NY 73, 75 [1920]; see also Restatement [Second] of Torts § 509).” Significantly, in Bard v. Jahnke (6 NY3d 592, supra), this Court had occasion to once again reaffirm this rule, while also expressly declining to “dilute our traditional rule [of strict liability] under the guise of a companion common-law cause of action” (id. at 599). The Court concluded by unequivocally stating that “when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier [emphasis supplied]” (Bard v. Jahnke, 6 NY3d 592, 599, supra). As such, it is clear that this Court in Bard (supra), expressly rejected the notion, embraced by the Appellate Division herein, 12 that a common-law negligence cause of action may be pursued as an alternative or “companion” action to the traditional strict liability claim. Since Bard was decided in 2006, this Court has consistently held that no cause of action for ordinary negligence lies for injuries caused by the conduct of a household pet (see, Smith v. Reilly, 17 NY3d 895, supra; Petrone v. Fernandez, 12 NY3d 546, supra; Bernstein v. Penny Whistle Toys, Inc., 10 NY3d 787, supra). The decisions in Smith (supra) and Petrone (supra), are of particular import herein as both cases involve injuries that were caused by a pet dog but did not result from any alleged vicious or dangerous propensity of the dog. In Smith, the plaintiff sought to recover for injuries he sustained when he fell from his bicycle after colliding with the defendant’s dog in the roadway adjacent to the defendant’s residence (see, Smith v. Reilly, 83 AD3d 1492 [4th Dept., 2011]). After the Appellate Division affirmed the order of the Supreme Court denying the defendant’s motion for summary judgment, this Court reversed and awarded summary judgment to the defendant. In so holding, the Court stressed that the plaintiff could not recover for injuries resulting from the mere presence of the dog in a roadway absent evidence that the defendant was aware of the animal’s propensity to interfere with traffic (see, Smith v. Reilly, 17 NY3d 895, supra). In accord with some 200 years of jurisprudence, the Court did not recognize or analyze any theory of liability sounding in negligence. 13 In Petrone (supra), the plaintiff was injured when she ran from an unrestrained dog that never made any contact with her. The plaintiff commenced an action against the defendants alleging two causes of action: [1] for strict liability based upon the defendants’ supposed knowledge of the dog’s “prior history of vicious propensities”; and [2] for negligence based, in part, on the defendants’ alleged violation of a local leash law established in the New York City Health Code [i.e., 24 RCNY 161.05(a)] (Petrone v. Fernandez, 12 NY3d 546, 549, supra). The Appellate Division reversed the decision of the Supreme Court and denied the defendants’ summary judgment motion. In so holding, the Appellate Division determined that a dog owner “may be held liable to a plaintiff based upon an alleged violation of a local leash ordinance” even in the absence of prior vicious propensities (Petrone v Fernandez, 53 AD3d 221, 222 [2d Dept 2008]). This Court reversed, stating, in pertinent part, as follows (Petrone v. Fernandez, 12 NY3d 546, 550, supra): “[W]hen harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier” (Bard v Jahnke, 6 NY3d 592, 599 [2006] [emphasis added])—i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities (see Collier, 1 NY3d at 446-447; see also Bard, 6 NY3d at 601 [R.S. Smith, J., dissenting] [objecting to “the rule . . . adopted by the majority, that the strict liability involved in Collier is the only kind of liability the owner of a domestic animal may face—that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned”]). Just last year we unanimously affirmed an Appellate Division decision rejecting the notion that a negligence cause of action survives Collier and Bard (see 14 Bernstein v Penny Whistle Toys, Inc., 10 NY3d 787 [2008], affg 40 AD3d 224 [1st Dept 2007]). Here, defendant's violation of the local leash law is “irrelevant because such a violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability” after Collier and Bard (Alia, 39 AD3d at 1069). Given the foregoing, it was plainly error for the Appellate Division to hold that Plaintiff could pursue his common-law negligence claim under these circumstances. Indeed, it is clear that this Court has consistently refused to stray from the strict liability rule in cases involving pet dogs (see, Smith v. Reilly, 17 NY3d 895, supra; Petrone v. Fernandez, 12 NY3d 546, supra; Bernstein v. Penny Whistle Toys, Inc., 10 NY3d 787, supra; Bard v. Jahnke, 6 NY3d 592, supra; Collier v. Zambito, 1 NY3d 444, supra). As Plaintiff never pleaded a theory of strict liability (R. 16-21), Defendant’s motion for summary judgment dismissing the Complaint should be granted.5 B. THIS COURT’S DECISION IN HASTINGS DID NOT CREATE A COMMON-LAW NEGLIGENCE CAUSE OF ACTION FOR INJURY CAUSED BY A DOMESTIC HOUSEHOLD PET This Court’s decision in Hastings v. Suave (21 NY3d 122 [2013]), did not overrule the traditional strict-liability rule in this State and it did not otherwise create a common-law negligence cause of action which may be pursued in any and 5 In any event, even if Plaintiff had pleaded a strict liability cause of action, there is no evidence that Defendant’s dog had a known vicious or dangerous propensity (R. 12-14). Indeed, Plaintiff has conceded this point, stating at nisi prius that he had “never asserted that the dog exhibited vicious propensities” (R. 258). 15 all cases where it is alleged that a household pet has caused injury. To the contrary, it is clear that the Court in Hastings was very circumspect in its ruling. The plaintiff in Hastings (supra), was injured when the van she was driving hit a cow on a public road (21 NY3d 122, 125-126, supra). As noted by this Court, there was evidence that the fence constituting a barrier between the cow and the roadway was in disrepair (id., at 124). This Court reversed the order of the Appellate Division and denied the defendants’ motions for summary judgment, holding that “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7)—is negligently allowed to stray from the property on which the animal is kept [emphasis supplied]” (id. at 125-126). In so holding, this Court concluded that New York’s strict liability rule “is inapplicable to a case of this kind,” reasoning, in pertinent part, as follows (id. at 125): The claim here is fundamentally distinct from the claim made in Bard and similar cases: It is that a farm animal was permitted to wander off the property where it was kept through the negligence of the owner of the property and the owner of the animal. To apply the rule of Bard—that “when harm is caused by a domestic animal, its owner's liability is determined solely” by the vicious propensity rule (6 NY3d at 599)—in a case like this 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. While the Court did not cite to any precedent in support of this irrefutable logic, its conclusion in this regard merely represented an affirmation of the well- 16 settled rule that a negligence claim will lie where a cow and/or horse in a roadway causes an accident, as cows/horses do not generally wander onto public roads in the absence of negligence (see, Unger v. The Forty-Second Street and Grant Street Ferry Railroad Company, 51 NY 497 [1873]; see also, Young v. Wyman, 159 AD2d 792 [3d Dept. 1990], affd. 76 NY2d 1009 [1990]; Loeffler v. Roberts, 136 AD2d 824 [3d Dept. 1988]; Furlong v. Winne & McKain Company, 166 AD 882 [3d Dept. 1915]). Indeed, it was this precise line of precedent that was invoked by the plaintiff in Hastings in support of her position that she could pursue a negligence claim under the circumstances (see, Plaintiff-Appellant’s Brief, 2012 WL 8681053, at *14).6 Furthermore, this Court specifically stated in Hastings (supra), that it was not considering whether the rule enunciated therein – i.e., that a landowner or the owner of an animal may be liable under ordinary tort-law principles when the animal is negligently allowed to stray from the property on which the animal is kept – applies to “dogs, cats or other household pets.”7 6 The plaintiff in Hastings further asserted that this rule of law had never been overruled by this Court and, moreover, that “[t]his Court has never specifically held that recovery in a cow/horse in the road case is limited to strict liability only [emphasis supplied]” (Plaintiff-Appellant’s Brief, 2012 WL 8681053, at *14). 7 The Court’s apprehension in this regard may have stemmed from the fact that this Court has previously held “that the mere presence of an unrestrained dog on the street does not give rise to a presumption of negligence on the part of its owner” (Young v. Wyman, 76 NY2d 1009 [1990]). 17 Under the circumstances, therefore, it is clear that the negligence claim recognized in Hastings (supra), which is plainly premised upon a “premises liability” theory, should not be extended to injuries allegedly caused by a dog lawfully in a public park. That is, even if this Court does decide to extend Hastings to apply to household pets, such would merely engender a rule that the owner of a dog may be held liable under ordinary common-law negligence principles when the dog is negligently permitted to stray from the property on which the dog is kept. Plainly, such circumstances are not extant in the matter at bar. It is uncontested that Defendant’s dog was not an escapee from Defendant’s property. To the contrary, the dog was lawfully permitted to be in the park and off the leash at the time the incident occurred (R. 227). Accordingly, unlike the defendants in Hastings (supra), there is no basis for concluding that Defendant had failed to maintain her premises in a reasonably safe condition or otherwise failed to take care that her dog was not in an area where it was not legally permitted to be (cf., Hastings v. Suave, 21 NY3d 122, 126, supra). In sum, this Court’s decision in Hastings does not provide a basis for recognizing an entirely new common-law negligence theory of liability in the matter at bar. To hold otherwise is to open a Pandora’s Box and thereby exponentially increase the exposure to legal liability faced by pet owners across the State. Every action in owning a dog, caring for a dog, walking a dog, playing with 18 a dog, or permitting a dog to play with other dogs would be subject to legal scrutiny. Such an expansion of potential legal liability is neither mandated nor warranted by the circumstances at bar. 19 CONCLUSION For the foregoing reasons, it is respectfully requested that the Order appealed from be reversed and the Complaint dismissed, with costs and disbursements and such further relief as the Court deems just under the circumstances. Dated: New York, New York May 12, 2014 Respectfully submitted, ___________________________ MISCHEL & HORN, P.C. One Whitehall Street New York, New York 10004 212.425.5191 sth@mhappeals.com BY: SCOTT T. HORN, ESQ. Appellate Counsel to: Hoey, King, Epstein, Prezioso & Marquez Attorneys for Defendant Julie Smith Of Counsel: SCOTT T. HORN, ESQ. NAOMI M. TAUB, ESQ.