In Buiko v. Neto, a decision that was handed down on December 5, an upstate appeals court upheld the dismissal of a negligence action by a bicyclist against a dog owner.
In this case, the plaintiff contended that the defendant's dog darted from their yard in front of his bicycle, causing him to fall off his bike and sustain serious personal injuries. In affirming the trial court's dismissal of the case, the appellate court noted that the plaintiff's claim failed because he could not demonstrate that the defendant's dog either had known vicious propensities, and/or, as applied to the facts in this case, that the dog had a previously known tendency to interfere with passing traffic, stating:
"[I]t is well settled that a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury ... The sole viable claim against the owner of a dog that causes injury is one for strict liability (see Bard v Jahnke, 6 NY3d at 596-597, 599; Alia v Fiorina, 39 AD3d 1068, 1069 ). To establish strict liability, "there must be evidence that the animal's owner had notice of its vicious propensities" (Alia v Florina, 39 AD3D at 1069; see Collier v Zambito, 1 NY3d 444, 446-447 ). "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'" (Collier v Zambito, 1 NY3d at 446, quoting Dickson v McCoy, 39 NY 400, 403 ).
"Indeed, "a dog's habit of chasing vehicles or otherwise interfering with traffic could be a 'vicious propensity'" (Alia v Florina, 39 AD3d at 1069). Therefore, in a case such as this, in the absence of proof that Dudley has a history of chasing bicycles or vehicles or otherwise interfering with traffic, "there is no basis for the imposition of strict liability" (id. at 1069; see e.g. Smith v Reilly, 17 NY3d 895, 896 ; Berg v Chawgo, 277 AD2d 620, 620 ).
Given the facts of this case, I don't think you can argue with the result reached by the Court.