Case Updates for December

Smith v. Reilly, 17 NY3d 895 (2011) – Court of Appeals holds that testimony of acts of a dog, including on three to five occasions of escaping defendant’s control, barking and running towards the road is insufficient to raise a triable issue of fact regarding a propensity of a dog to interfere with traffic.

Walash v. Kilgour, 2011 WL 4346793 (NY Sup.) – Replevin action brought to recover a dog adopted out by husband’s ex-wife prior to the divorce to an out of state pet spa which was then adopted to a third party. Husband brought this action against the third party to recover the dog. The court held that the transfer of the dog was not subject to the UCC and that the husband’s ex-wife did not commit larceny as the dog was marital property at the time of the transfer, and that the husband had an equal right of possession notwithstanding that the dog was licensed in the ex-wife’s name alone.

Gebbia v. Schulder, 2011 WL 4424731 (NY Sup. App. Term) – In a claim brought under a theory of a breach of an implied warranty of merchantability (UCC 2-714) for the purchase of a genetically defective dog, the court found that although a dog constitutes a “good” under 2-105 of the UCC and a breeder constitutes a merchant under UCC 2-104(1) and that damages may be recovered under UCC 2-714, the plaintiff buyer failed to notify the seller of its breach pursuant to UCC 2-714(1), thus the action must fail.

Rotunda v. Haynes, 2011 WL 4949694 (NY Sup. App. Term) – Holds that since the owner of a dog with a genetic heart defect had received the dog from a breeder as a gift, rather than a purchase as a “consumer”, the owner was not in privity with the breeder and cannot recover under the UCC or the NYS “puppy lemon-law” found at General Business Law §753.