My bodega, Village Farm & Grocery – where I’ve gotten my paper on my way to the subway for the past 10+ years – used to have a sweet, cow-colored cat named “Princess” who, in my experience, was nothing like the “opossum-like” monster described in Napolitano v. Alshaebi.
Here are the facts of that case, decided by the Supreme Court, Kings County, on August 8, 2014:
On April 9, 2012, at around 6:00 in the evening, Napolitano was walking her eleven month old miniature schnauzer in Borough Park, a neighborhood in the southwest part of Brooklyn. She entered Boro Park Deli Grocery , a convenience store with a street level entrance on the corner of Utrecht Avenue located at 4928 New Utrecht Avenue, Brooklyn, New York 11219.
At the time, Alshaebi, the owner of the deli and leesee of the space, was alone by the cash register behind the counter. His deli offered sandwiches, cigarettes, newspapers, sodas and other items typically found in a local neighborhood store. After paying for a newspaper, Napolitano noticed what she described as a large, grey, opossum-like cat emerge from a shelf display of Entenmann’s cakes by her feet in front of the counter. As she turned away to leave the store, the cat swatted at her dog. Instinctively, she bent down and scooped up her pet in a protective move. At that point, the ferocious feline attacked her right leg injuring her calf.
Plaintiff sued, and lost.
In general, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal.” Rather:
For at least 188 years the law of [New York] 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 cause[d] as a result of those 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. Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice. Evidence tending to demonstrate an animal’s vicious propensities may include a prior attack, a tendency to growl, snap, or bare its teeth, the manner in which the animal was restrained, the fact that the animal was kept to guard the premises, and a proclivity to act in a way that puts others at risk of harm.
Applying these principles, the court held:
Although Napolitano may have arguably raised an issue of fact regarding whether Alshaebi harbored the cat, she did not raise a triable issue of fact regarding whether the cat had vicious propensities. In fact, she offered no evidence demonstrating that the cat exhibited a proclivity to act in a way that puts others at risk of harm. Moreover, Napolitano admitted that she had no knowledge of the cat’s behavior or history prior to her injury. Therefore, Napolitano fails to raise a triable issue of fact as to Alshaebi’s knowledge of the cat’s vicious propensities.
The court also rejected plaintiff’s argument that the alleged violations of “several health and safety codes and regulations which prohibit an establishment from keeping an animal in a place where food is prepared”, reasoning that “since New York does not recognize common-law negligence as a cause of action for injuries caused by a domestic animal, the issue of whether Alshaebi violated a New York State statute or a municipal codes or regulation is not relevant or useful in determining fault under a strict liability analysis.”