Full Case Name:  Marsha HEWITT, Appellant, v. PALMER VETERINARY CLINIC, PC, Respondent, et al., Defendant.

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Country of Origin:  United States Court Name:  Court of Appeals of New York Primary Citation:  35 N.Y.3d 541, 159 N.E.3d 228 (2020) Date of Decision:  Thursday, October 22, 2020 Judge Name:  Judge Stein Jurisdiction Level:  New York Alternate Citation:  No. 28, 134 N.Y.S.3d 312, 2020 N.Y. Slip Op. 05975, 2020 WL 6163313 (N.Y., Oct. 22, 2020) Attorneys:  Mark Schneider, Plattsburgh, for appellant. Burke, Scolamiero & Hurd, LLP, Albany (Judith Aumand and Peter Balouskas of counsel), for respondent. New York State Trial Lawyers Association, New York City (Michele S. Mirman of counsel), for New York State Trial Lawyers Association, amicus curiae. Powers & Santola, LLP, Albany (Michael J. Hutter of counsel), and New York State Academy of Trial Lawyers, Albany (Angélicque Moreno of counsel), for New York State Academy of Trial Lawyers, amicus curiae. James P. O'Connor, Defense Association of New York, Inc., Jericho (Andrew Zajac, Rona L. Platt, Brendan T. Fitzpatrick and Jonathan Uejio of counsel), for the Defense Association of New York, Inc., amicus curiae. Docket Num:  No. 28
Summary: This is an action for negligence and premises-liability brought by a plaintiff, who was attacked by another patron's dog in the waiting room of defendant veterinary clinic. Plaintiff alleges defendant had a duty to provide a safe waiting area, which was breached by allowing the aggressive dog to attack her. Defendants allege that it had no knowledge of the dog's prior aggressive tendencies, and moved for summary judgment. The Supreme Court granted defendants motion for summary judgment, and the plaintiff appealed. The court found that a lack of notice of the dog's vicious propensities does not alleviate defendant's liability to provide a safe waiting area, and modified the lower court's granting of summary judgment.


Background: Patron brought negligence and premises-liability action against veterinary clinic, alleging that she was attacked by another patron’s dog in clinic’s waiting room. Patron subsequently moved to strike clinic’s apportionment defense, and clinic cross-moved to strike alternative theories of liability raised in patron’s supplemental bill of particulars, specifically, that clinic was negligent by not giving dog effective pain medication or anesthesia and by not following proper post-treatment procedures. The Supreme Court, Clinton County, denied patron’s motion and granted clinic’s cross-motion. Clinic then moved for summary judgment, and patron cross-moved for summary judgment on issue of liability. The Supreme Court, Clinton County, Ellis, J., granted clinic’s motion and denied patron’s cross motion. Patron appealed. The Appellate Division, 167 A.D.3d 1120, 89 N.Y.S.3d 738, affirmed. The Court of Appeals granted patron leave to appeal.  

Holdings: The Court of Appeals, Stein, J., held that:  

[1] clinic owed duty of care to patron in clinic’s waiting room;  

[2] protections of vicious propensity rule did not apply to clinic;  

[3] genuine issues of material fact as to whether injury was foreseeable, and whether clinic took reasonable steps to discharge duty of care, precluded summary judgment; and  

[4] court acted within its discretion in striking portions of patron’s supplemental bill of particulars.  

Affirmed as modified.  

Wilson, J., filed concurring opinion.



*545 Defendant Palmer Veterinary Clinic, PC treated Vanilla, a dog, for a paw injury ***314 **230 at its clinic. That same day, plaintiff *546 Marsha Hewitt brought her cat to the clinic for an examination. As plaintiff waited in the reception area, a veterinarian returned Vanilla to her owner in the waiting room; the dog had just undergone a medical procedure to remove a broken toenail. At some point after the veterinarian handed Vanilla’s leash back to her owner, Vanilla saw plaintiff’s cat in its carrier, slipped her collar and—in an apparent attempt to reach the cat—jumped at plaintiff from behind, grabbing her ponytail.  

Several months later, plaintiff commenced the instant action against Palmer, alleging that she suffered injuries as a result of the incident.1 As relevant here, the complaint alleged that Palmer had a duty to provide a safe waiting room, that Palmer breached that duty by failing to exercise due care and by bringing an “agitated, distressed” dog into the waiting area, and that Palmer knew Vanilla had vicious propensities and was in an agitated and aggressive state. Palmer answered, generally denying the allegations and asserting various affirmative defenses, including that the clinic was entitled to have any liability apportioned between itself and the dog’s owner under CPLR article 16.  

Plaintiff subsequently filed supplemental bills of particulars, wherein she alleged that the clinic was negligent in bringing an agitated and aggressive dog into the waiting room and for failing to adjust the dog’s collar to prevent it from getting loose. She also alleged—for the first time—that Palmer was negligent “in not giving an effective pain medication and/or anesthesia to the dog” and “in not following the standard of care [for] dogs after surgery.” Thereafter, plaintiff moved to strike Palmer’s CPLR article 16 defense, and Palmer cross-moved to strike plaintiff’s supplemental bills of particulars.  

Supreme Court agreed with Palmer that plaintiff’s allegations regarding the lack of anesthesia and the alleged failure to follow the accepted standard of care for surgery “expand[ed] the theory for recovery based on the medical care that Palmer rendered to the dog, for which there was no notice in the [c]omplaint.” Thus, Supreme Court struck those portions of the supplemental bills of particulars and denied the remainder of Palmer’s motion. In addition, Supreme Court denied plaintiff’s request to strike Palmer’s apportionment defense.  

*547 Palmer eventually moved for summary judgment dismissing plaintiff’s complaint in its entirety, asserting that it had no prior knowledge of Vanilla’s vicious propensities and that such knowledge was a condition predicate to its liability. In support of its motion, Palmer proffered excerpts from the depositions of the veterinarian that treated Vanilla, the clinic’s manager, the dog’s owner, and plaintiff herself. Palmer asserted that these materials demonstrated that it lacked any notice of Vanilla’s alleged vicious propensities.  

Plaintiff opposed Palmer’s motion for summary judgment and cross-moved for partial summary judgment, arguing that Palmer could be held liable in negligence despite a lack of knowledge of Vanilla’s vicious propensities. In support of her motion, plaintiff submitted an affidavit from a veterinary behaviorist and anesthesiologist, who opined that the incident was foreseeable and avoidable through various measures and that Palmer failed to use due care to prevent plaintiff’s injury. In response, Palmer submitted an affidavit by its veterinarian majority owner, who asserted **231 ***315 that Vanilla’s treatment and discharge did not deviate from the accepted standard of care.  

Supreme Court granted Palmer’s motion for summary judgment, reasoning that Palmer’s liability was contingent upon it having had notice of vicious propensities in the same manner as that of a dog owner. Upon plaintiff’s appeal, the Appellate Division affirmed, with one Justice dissenting in part (167 A.D.3d 1120, 89 N.Y.S.3d 738 [3d Dept. 2018]). The Appellate Division concluded that Palmer could not be held liable without notice of an animal’s vicious propensities, relying on our precedent dismissing claims against animal owners in the absence of proof of such notice (see generally Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116, 14 N.Y.S.3d 726, 35 N.E.3d 796 [2015]; Bard v. Jahnke, 6 N.Y.3d 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006]; Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004]). The Appellate Division also rejected plaintiff’s additional claims that the court erred by striking certain allegations from her bills of particulars and declining to strike Palmer’s apportionment defense. We granted plaintiff leave to appeal, and now modify the order below by denying Palmer’s motion for summary judgment.   

Plaintiff does not dispute that, under existing precedent, an owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities (see Collier, 1 N.Y.3d at 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). “Once such knowledge is established, an owner faces strict liability *548 for the harm the animal causes as a result of those propensities” (id. at 448, 775 N.Y.S.2d 205, 807 N.E.2d 254). We have explained that an “[o]wner’s liability is determined solely by application of the [vicious propensity] rule,” declining to permit a parallel negligence claim in such context (Bard, 6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463; see Petrone v. Fernandez, 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009]). Neither party in this case has asked us to overrule Bard, nor is that line of precedent concerning animal owners directly implicated here.2 Plaintiff argues, however, that this rule does not—and should not—apply to Palmer, a veterinary clinic. We agree.  

The vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet-owners—such as landlords who rent to pet owners—under a negligence standard (see Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13 [1984]). However, we have recognized that other competing policies and contemporary social expectations may be at play in certain instances where domestic animals cause injuries. For example, we held that the owner of a farm animal “may be liable under ordinary tort-law principles” when that farm animal is allowed to stray from the property on which it is kept (Hastings v. Sauve, 21 N.Y.3d 122, 125–126, 967 N.Y.S.2d 658, 989 N.E.2d 940 [2013]). 

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various ***316 **232 stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Indeed, here, a veterinarian introduced Vanilla into a purportedly crowded waiting room, where the dog was in close proximity to strangers and their pets—allegedly creating a volatile environment for an animal that had just undergone a medical procedure and may have been in pain. Palmer is in the business of treating animals and *549 employs veterinarians equipped with specialized knowledge and experience concerning animal behavior—who, in turn, may be aware of, or may create, stressors giving rise to a substantial risk of aggressive behavior. With this knowledge, veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.   

Therefore, we conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff’s claim. To be sure, “[w]e do not intend to suggest that [Palmer] would be subject to the same strict liability” as the owner of a domestic animal (Strunk, 62 N.Y.2d at 575–576, 479 N.Y.S.2d 175, 468 N.E.2d 13). However, we are satisfied that, under the circumstances presented here, a negligence claim may lie despite Palmer’s lack of notice of Vanilla’s vicious propensities. Furthermore, viewing the record in the light most favorable to plaintiff, as we must (see Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012]), questions of fact exist as to whether the alleged injury to plaintiff was foreseeable, and whether Palmer took reasonable steps to discharge its duty of care. Thus, neither party was entitled to summary judgment. 

Addressing plaintiff’s remaining arguments, we are unpersuaded that the courts erred by striking those portions of plaintiff’s supplemental bills of particulars alleging that Palmer was negligent based on a purported failure to use anesthesia or otherwise follow the standard of care in its treatment of Vanilla. Those allegations, raised for the first time several years after commencement of the action, introduced a new theory of liability into the case relating to Palmer’s medical treatment of Vanilla and the standard of care owed to the patient dog and its owner, as compared with the duty that Palmer owed to plaintiff. Palmer was not on notice of these claims based upon the original allegations of the complaint and, on this record, the striking of such allegations did not constitute an abuse of discretion (cf. Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580, 26 N.Y.S.3d 231, 46 N.E.3d 614 [2015]; see CPLR 3043[b], [c]; Schonbrun v. DeLuke, 160 A.D.3d 1100, 1101, 75 N.Y.S.3d 99 [3d Dept. 2018]; Dalrymple v. Koka, 295 A.D.2d 469, 469, 744 N.Y.S.2d 427 [2d Dept. 2002]). Finally, plaintiff’s argument that Palmer’s apportionment defense should have been stricken lacks merit (see CPLR 1601[1]; Rangolan v. County of Nassau, 96 N.Y.2d 42, 45, 725 N.Y.S.2d 611, 749 N.E.2d 178 [2001]).  

*550 Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendant’s motion for summary judgment and, as so modified, affirmed.  

WILSON, J. (concurring in result).

***317 **233 From time immemorial, humans have domesticated animals. Dogs may have domesticated themselves (and in the process, helped us humans to domesticate ourselves) (see Darcy F. Morey & Rujana Jeger, From Wolf to Dog: Late Pleistocene Ecological Dynamics, Altered Trophic Strategies, and Shifting Human Perceptions, 29 Historical Biology 895 [2017]). Sometimes domestic animals injure humans. For well over a century, New York allowed persons injured by a domestic animal to sue the animal’s owner under either an ordinary negligence theory or a strict liability theory (see Dickson v. McCoy, 39 N.Y. 400, 401 [1868]; Benoit v. Troy & Lansingburgh R.R. Co., 154 N.Y. 223, 227, 48 N.E. 524 [1897]; Hyland v. Cobb, 252 N.Y. 325, 326–327, 169 N.E. 401 [1929]). The injured party had a choice. Under rules of ordinary negligence, the victim could seek to prove that the defendant had a duty, failed to use due care in discharging that duty, which proximately caused the victim’s injury. Animal owners presumptively had a duty to control their animals, but others might also have such a duty when they “created the very risk ... which operated to injure [the] plaintiff” (Strunk v. Zoltanski, 62 N.Y.2d 572, 575, 479 N.Y.S.2d 175, 468 N.E.2d 13 [1984]; see also Molloy v. Starin, 191 N.Y. 21, 27, 83 N.E. 588 [1908] [common carrier liable for injuries caused by animals it was transporting]). Alternatively, if the owner knew that a domestic animal had vicious propensities, the victim could hold the owner strictly liable—that is, the owner of a vicious animal could not escape liability by showing that the owner had taken due care.  

That dual approach made sense. Persons negligently injured by a factory machine, car, bicycle, horse or dog could recover without regard to whether the injury was caused by human, machine or animal, so long as duty, negligence and proximate cause were proved. However, if a domestic animal known to have vicious propensities hurt someone, the entire risk was placed on the owner, evidencing a policy against the harboring of vicious animals. That rule persisted until Bard v. Jahnke, 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463 [2006], in which we held that owners of domestic animals could not be held liable for injuries caused by their animals unless the plaintiff could prove that the owner knew the animal had vicious propensities—that is, under a strict liability theory (id. at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463). Bard, however, did not disturb the viability of settled law allowing persons injured by animals to *551 assert ordinary negligence claims against persons other than the animal’s owner (see Benoit, 154 N.Y. at 228, 48 N.E. 524; Molloy, 191 N.Y. at 27, 83 N.E. 588; Strunk, 62 N.Y.2d at 575–576, 479 N.Y.S.2d 175, 468 N.E.2d 13).  

I concur with the majority’s holding that Ms. Hewitt may proceed against Palmer Veterinary Clinic (Palmer) in negligence. I further agree with the majority’s holding that this case does not implicate Bard’s rule (subjecting animal owners to strict liability) because Palmer was not the owner of Vanilla, the dog who injured Ms. Hewitt. Because the record presents disputed issues of fact, I further agree with the majority that neither party is entitled to summary judgment. I concur separately to express why prudence and longstanding precedent dictate that Bard’s strict liability rule—a rule that has rendered New York an outlier and confounded common sense and fairness in application—should not be extended to persons who are not the owner of the domestic animal causing ***318 **234 injury.1 I note that neither party has asked us to overturn Bard—understandably so because its rule does not apply to the facts of this case.  

New York has long allowed negligence actions for injuries caused by domestic animals. In Dickson v. McCoy, 39 N.Y. 400 [1868], we affirmed a damage award for a child injured by a renegade horse. Judge Dwight held that even though “there is no proof in this case that this horse was vicious and accustomed to attack and injure mankind ... I regard the allegation as unnecessary and the absence of proof on the point as not affecting the right to recover.... It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner’s negligence” (id. at 401). Judge Grover believed that the trial court erred in refusing to charge the jury that there was no evidence that the horse had any vicious propensity, “which required the defendant to exert *552 any greater care over him that prudent men should exercise, in general, over horses kept in the same or a similar locality,” although he noted that “the jury may have based their verdict upon another ground” (id. at 402).2 That other ground is negligence.  

In Benoit v. Troy & Lansingburgh R.R. Co., 154 N.Y. 223, 48 N.E. 524 [1897], a unanimous Court made clear that the common law allowed both a strict liability action when owners knew of their animals’ vicious propensities and an action for negligence if those owners did not take reasonable measures to prevent their animals from causing injuries (id. at 225, 48 N.E. 524 [Andrews, Ch. J.] [ordering a new trial where “neither (cause of action) was sustained by evidence”]). Likewise, in Hyland v. Cobb, 252 N.Y. 325, 169 N.E. 401 [1929], we stated that “negligence by an owner, even without knowledge concerning a domestic animal’s evil propensity, may create liability” (id. at 326–327, 169 N.E. 401). In addition, throughout the 20th century, New York courts have held that persons other than an animal’s owner may be liable in negligence for injuries foreseeably caused by animals in their custody (see Molloy v. Starin, 191 N.Y. 21, 27, 83 N.E. 588 [1908] [holding that a plaintiff could proceed under a negligence theory against a common carrier that transported but did not own the trained bears that injured the plaintiff]). Notice of a domestic animal’s vicious propensity may also render non-pet-owners who ordinarily have no duty, such as out-of-possession landlords, liable under a negligence standard (see Strunk v. Zoltanski, 62 N.Y.2d 572, 575–76, 479 N.Y.S.2d 175, 468 N.E.2d 13 [1984] [“We do not intend to suggest that the landlord ***319 **235 would be subject to the same strict liability to which a tenant as harborer of the dog would be subject ... but landlords as others must exercise reasonable care not to expose third persons to an unreasonable risk of harm”]).  

When Bard stated that an injured party could bring a claim in strict liability only against owners of domestic animals, it radically altered New York’s settled law allowing negligence actions against animal owners. It shifted the burden away from owners of domestic animals, who previously had to comply with a duty of care, to parties injured by those animals. Though Bard correctly stated the rule, affirmed in *553 Collier v. Zambito, 1 N.Y.3d 444, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004], that an owner who knows or has reason to know of an animal’s dangerous propensities faces strict liability, it introduced the novel holding that strict liability was the only type of liability that an owner of a domestic animal may face. After Bard, unless owners had knowledge of their domestic animals’ vicious propensities—established by prior acts, behaviors of the animal, or behaviors of its owner which lead to an inference of viciousness (see Collier, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254)—those owners were insulated from liability. However, Bard neither altered nor established any rule as to the liability of non-owners responsible for injury-causing animals.  

We have since applied Bard to pet owners, with confounding results, but have also recognized that Bard’s rule does not apply to immunize others from liability for their own negligence. Since Bard, we have declined to extend its strict liability rule to the claim that the owner of a farm animal negligently allowed the animal to stray, causing injury (Hastings v. Sauve, 21 N.Y.3d 122, 967 N.Y.S.2d 658, 989 N.E.2d 940 [2013]), and the claim that a third-party defendant negligently failed to protect a child from injury by another party’s dog (Bernstein v. Penny Whistle Toys, Inc., 10 N.Y.3d 787, 856 N.Y.S.2d 532, 886 N.E.2d 154 [2008]).3 In Hastings, we distinguished Bard on the ground that unlike the animals in Collier, Bard, and Bernstein, the injury was not caused by any “aggressive or threatening behavior by” the wandering cow (Hastings, 21 N.Y.3d at 125, 967 N.Y.S.2d 658, 989 N.E.2d 940). Although in Hastings we rejected Bard’s strict liability rule because it “would immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people’s property” (id.), only two years later in Doerr v. Goldsmith, 25 N.Y.3d 1114, 14 N.Y.S.3d 726, 35 N.E.3d 796 [2015] we applied the Bard rule to immunize negligent dog owners who deliberately commanded their large, well-trained docile dog to run across a roadway filled with runners, cyclists and rollerbladers, severely injuring a cyclist (id. at 1116, 14 N.Y.S.3d 726, 35 N.E.3d 796). Thus, as the dissenters in Bard predicted, our application of Bard’s rule to animal owners has run “contrary to fairness and common sense,” compelling its “ero[sion] *554 by ad hoc exceptions” (Bard, 6 N.Y.3d at 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 [Smith, J., dissenting]). The ***320 **236 inequity of the Bard rule in the context of pet-owner liability sharply cautions against extending that rule a whit.  

Under our longstanding, settled precedent, undisturbed by Bard, a person injured by an animal may, under ordinary rules of negligence, sue a person other than the animal’s owner. Here, as the majority holds, Palmer unquestionably owes a duty of care to persons waiting in its clinic. Whether injury to such persons caused by an animal patient is foreseeable, and whether a clinic has taken reasonable precautions to discharge its duty are questions of fact—not issues that we can say as a matter of law always exist or always are absent. Because those factual questions are present and unresolved in the instant case, I agree with the majority that Supreme Court’s grant of summary judgment to Palmer was erroneous.4 Viewing the facts in the light most favorable to Ms. Hewitt (see *555 Vega v. Restani Const. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012]), the record presents multiple disputed issues of fact relating to, for example, whether the physical facility, practices on discharge, and restraint and supervision of Vanilla were reasonable. The parties dispute, for instance, the nature of Vanilla’s behavior and handling during her medical procedure, and how Palmer’s employee reported Vanilla’s behavior to the dog’s owner in the waiting room. It remains for the trier of fact to resolve the issue of whether the exercise of due care under the circumstances would have required any or all of the measures advocated by Ms. Hewitt’s expert affiant, for example, delaying Vanilla’s return to the waiting room or discharging her through a separate room, checking or adjusting Vanilla’s collar, or ***321 **237 otherwise preventing Vanilla from coming close to Ms. Hewitt’s cat. Thus, neither Palmer nor Ms. Hewitt is entitled to summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).  

Chief Judge DiFiore and Judges Garcia and Feinman concur. Judge Wilson concurs in result in an opinion in which Judges Rivera and Fahey concur.

Order modified, without costs, by denying defendant’s motion for summary judgment and, as so modified, affirmed.

All Citations

35 N.Y.3d 541, 159 N.E.3d 228, 134 N.Y.S.3d 312, 2020 N.Y. Slip Op. 05975


1 The dog’s owner originally also was named as a defendant in the action, but the parties stipulated to discontinue the action against the owner, without prejudice to the clinic’s apportionment defense.

2 We need not comment on the concurrence’s description of Bard v. Jahnke, 6 N.Y.3d 592, 599, 815 N.Y.S.2d 16, 848 N.E.2d 463 (2006) or other precedent relating to the liability of domestic animal owners because, as our concurring colleague acknowledges, this appeal does not involve a dog owner and plaintiff does not seek to hold Palmer strictly liable.

1 As the Appellate Division observed in the instant case, Bard’s “strict liability rule has not escaped criticism” in our Court (Hewitt v. Palmer Veterinary Clinic, PC, 167 A.D.3d 1120, 1121, 89 N.Y.S.3d 738 [3d Dept. 2018], citing Doerr v. Goldsmith, 25 N.Y.3d 1114, 1154–1155, 14 N.Y.S.3d 726, 35 N.E.3d 796 [Fahey, J., dissenting]; Bard, 6 N.Y.3d at 601–602, 815 N.Y.S.2d 16, 848 N.E.2d 463 [Smith, J., dissenting]). Bard deviated from over a century of precedent and made New York the lone outlier among the 50 states in holding that negligent animal owners may not be held liable unless they know of an animal’s vicious propensity; no other state immunizes owners from liability for their own negligence (see Doerr, 25 N.Y.3d at 1149, 14 N.Y.S.3d 726, 35 N.E.3d 796 [Fahey, J., dissenting] [“(A) review of the law of other jurisdictions identifies New York as a unique outlier in its rejection of the Restatement (Second) of Torts § 518”]).

2 Judge Dwight and Judge Grover differed on whether the trial court properly denied the requested jury charge, but the court was unanimous that the judgment for the plaintiff should be affirmed. Together, their opinions hold that a person injured by a runaway horse may pursue a negligence action against the horse’s owner.

3 In Bernstein, we held that the Appellate Division correctly disallowed the plaintiff’s claim against the dog’s owner and a toy store operated by the dog’s owner “[s]ince there [was] no evidence ... that the dog’s owner had any knowledge of its vicious propensities” (Bernstein, 10 N.Y.3d at 788, 856 N.Y.S.2d 532, 886 N.E.2d 154). We provided a separate ground for dismissing the claim against the third party—the adult who had taken the infant plaintiff to the store and allowed the interaction with the dog—stating that “[p]laintiff’s claims against third-party defendant were also properly dismissed, because there is no evidence that third-party defendant was negligent” (id.).

4 I disagree with the majority’s conclusion that Supreme Court did not err in striking those portions of Ms. Hewitt’s supplemental bills of particulars alleging that Palmer was “negligent in not giving an effective pain medication and/or anesthesia to the dog,” and “in not following the standard of care of dogs after surgery.” Palmer failed to make a showing of prejudice or surprise sufficient to overcome CPLR 3025(b)’s command that leave to amend or supplement a pleading be freely granted. For the most part, the allegations in Ms. Hewitt’s supplemental bill of particulars merely amplified prior statements in Ms. Hewitt’s complaint relating to Vanilla’s condition before the incident—e.g., that the dog was in pain. Two other factors strongly suggest that, at a minimum, Supreme Court should revisit the propriety of the motion to strike. First, Supreme Court’s decision was likely colored by the application of the Bard strict liability standard, which we unanimously reject. The stricken portions do not bear on Palmer’s knowledge of Vanilla’s vicious propensities; striking them would have been appropriate were Ms. Hewitt limited to proceeding under a strict liability theory, but the stricken portions are directly related to the claim of negligence pleaded in Ms. Hewitt’s original complaint. We have repeatedly held that a court abuses its discretion in denying a party leave to amend pleadings absent prejudice or surprise resulting from the delay in seeking amendment, and we apply this favorable treatment “even if the amendment substantially alters the theory of recovery,” not just when the amendment adds details consistent with the original theory of recovery (Kimso Apts., LLC v. Gandhi, 24 N.Y.3d 403, 411, 998 N.Y.S.2d 740, 23 N.E.3d 1008 [2014], quoting Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498, 502–503, 285 N.Y.S.2d 55, 231 N.E.2d 756 [1967]; see also Fahey v. County of Ontario, 44 N.Y.2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146 [1978]). Second, because Ms. Hewitt was not Vanilla’s owner, her ability to learn about the nature of the procedure performed by Palmer and Vanilla’s underlying condition(s) would not have been possible except through disclosure; thus, the supplementation of her bill of particulars following receipt of disclosure is not remarkable. Therefore, I would hold that denying Ms. Hewitt leave to amend her pleading and striking portions of her supplemental bill of particulars constituted an abuse of discretion. I agree with the majority’s conclusion that Supreme Court properly declined to strike Palmer’s apportionment defense.

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