The following documents were filed with the Clerk of the County of Cortland: Notice of motion dated January 22, 2020. Affidavit of Jo Ann R. Davis, sworn to January 9, 2020, with Exhibits A-I. Affirmation of Terry J. Kirwan, Jr. dated January 22, 2020, with Exhibits A-E. Amended notice of cross motion dated February 26, 2020. Affirmation of Matthew C. Ronan dated February 26, 2020, with Exhibits A-P. Affidavit of Sean McLaughlin, sworn to February 27, 2020, with Exhibits A-K. Notice of cross motion dated March 4, 2020. Affirmation of Robert B. Liddell dated March 4, 2020, with Exhibits A-C. Affidavit of Timothy P. Phillips, sworn to February 2, 2020. Notice of cross motion dated March 5, 2020. Affirmation of Donald S. DiBenedetto dated March 5, 2020. Affirmation of Matthew C. Ronan dated April 30, 2020, with Exhibit Q. Affirmation of Robert B. Liddell dated June 8, 2020. Decision, Order, and Judgment dated July 8, 2020 Plaintiff was injured on April 23, 2017 when visiting the residence owned and occupied by defendant Timothy Phillips at 11 East Avenue in the City of Cortland when she fell after becoming entangled in the cable securing Phillips’s dog Sam just as Sam began to chase a cat. Defendant Travco Insurance Company (Travelers) disclaimed coverage on the basis that plaintiff was a named insured on the relevant homeowners’ insurance policy. Plaintiff commenced this action seeking (1) declaratory judgment that plaintiff was not a named insured on the policy on the date of the incident and requiring Travelers and defendant Bailey Place Insurance, Inc. (Bailey Place), the insurance agency through which the homeowners’ policy was obtained, to provide coverage for her claims and (2) damages against all named defendants. Plaintiff now moves for summary judgment declaring that Travelers is obligated to provide coverage and for summary judgment establishing Phillips’s liability or, alternatively, for leave to serve a second amended complaint asserting causes of action against Bailey Place for negligence and breach of contract based on the failure to ensure the removal of plaintiff as a named insured on the policy pursuant to a request that was allegedly made prior to the incident. Travelers cross moves for summary judgment declaring that it has no obligation to defend or indemnify Phillips and dismissing the complaint against it. Phillips cross moves for summary judgment dismissing the complaint. Bailey Place cross moves for dismissal of the complaint against it on the basis that Phillips has no liability to plaintiff for the injuries she sustained and also opposes plaintiff’s motion to amend the complaint. The following facts are undisputed. Plaintiff and Phillips are self-described significant others who began a relationship in 2008. Phillips has maintained his primary residence at 11 East Avenue continuously since 2010. From July 2010 until January 2014, plaintiff resided at 11 East Avenue with Phillips. In January 2012, Phillips conveyed the property to plaintiff and, pursuant to an application jointly submitted by plaintiff and Phillips, a policy of homeowners’ insurance was obtained from Travelers through Place Insurance, a predecessor of Bailey Place, on which they were both named insureds. In January 2014, plaintiff moved to a nearby home that had been owned by her recently-deceased former husband to reside with her teenaged son. In December 2016, plaintiff reconveyed 11 East Avenue to Phillips, who assumed the outstanding mortgage loan. In connection with this transaction, Phillips requested that Bailey Place issue proof of insurance satisfactory to the lender. Bailey Place thereafter issued an “Insurance Binder” showing that Phillips was a named insured on the Travelers policy covering 11 East Avenue and naming the lender as mortgagee. The binder does not mention plaintiff, but she was not removed as a named insured from the policy at that time. The policy has been renewed each year and continues to show both plaintiff and Phillips as named insureds. Plaintiff and Phillips also obtain automobile insurance through a joint policy from Travelers for which they receive a discount because they also maintain the homeowners’ insurance policy covering 11 East Avenue with Travelers. Plaintiff has known Sam, a Yellow Labrador Retriever, since Phillips acquired him as a puppy shortly after plaintiff moved from 11 East Avenue in 2014 and she acknowledged having seen him on more than 20 occasions. Sam was described as weighing 95 pounds and being “big, strong, muscular, [] powerful[, and] energetic.” It was also noted that Sam enjoys people and enthusiastically greets visitors to the home. On April 23, 2017, plaintiff drove to Phillips’s home to meet him for a bicycle ride. Phillips was in the garage inflating bicycle tires. When plaintiff exited her car, Sam came to greet her. Plaintiff petted Sam and began walking toward the garage. At that moment, Sam began to chase a cat and his cable wrapped around plaintiff’s ankle. As Sam continued to chase the cat, plaintiff was knocked down and injured. The insurance policy expressly excludes coverage for bodily injuries to an insured and for medical expenses incurred as a result of bodily injury to an insured. Plaintiff’s argument that she was not an insured, as a matter of law, because she had no insurable interest in the premises at 11 East Avenue on the date of the incident is unavailing. An insurable interest is “any lawful and substantial economic interest in the safety or preservation of property from loss, destruction or pecuniary damage” (Insurance Law §3401). An insurance policy covering loss or damage to property is enforceable only when issued to a person who has an insurable interest in the insured property (see Insurance Law §3401). However, as relevant here, the requirement that the insured have an insurable interest is applicable only to first-party casualty insurance, it is not applicable to third-party liability insurance (see Insurance Law §3401; Charnowitz v. GEICO, 177 AD2d 320, 321 [1991]). The reason for this distinction is apparent from the rationale for the insurable interest requirement. “It has long been the rule that, in order to prevent fraud and crime and to prohibit wagering contracts on property in which the insured possesses no interest, the lack of an insurable interest in the property insured renders the property insurance void and unenforceable” (Etterle v. Excelsior Ins. Co. of NY, 74 AD2d 436, 438 [1980], citing Scarola v. Insurance Co. of N. Am., 31 NY2d 411, 413 [1972] [other citation omitted]). These concerns are not implicated by third-party liability insurance because payments for a covered loss are made to an injured third-party, thus, there is no possibility of an insured loss impermissibly enriching an insured. Further, there is a sound rationale for permitting a person who has no economic interest in a property to be added as a named insured on the owner’s policy to insure against the risk of liability to third parties that he or she may be exposed to as an occupant sharing possession of the property with the owner’s permission and, further, to provide for a defense against such claims. It is presumably for this reason that Travelers allows domestic partners to be added to homeowners’ policies as named insureds. Accordingly, Travelers is entitled to declaratory judgment enforcing the policy as written and adjudging that it has no obligation to defend or indemnify Phillips in this action.1 Turning to the issue of whether Phillips has any liability for plaintiff’s injuries, the long-settled rule is 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” (Collier v. Zambito, 1 NY3d 444, 446 [2004] [citations omitted]). Vicious propensities are not narrowly defined, but include “the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” (id. [internal quotation marks and citation omitted]). Accordingly, “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities — albeit only when such proclivity results in the injury giving rise to the lawsuit” (id. at 447). Notably, normal canine behavior, such as chasing other dogs or small animals, does not constitute a vicious propensity (see Bloom v. Van Lenten, 106 AD3d 1319, 1321 [2013]; Hamlin v. Sullivan, 93 AD3d 1013, 1014 [2012]; Campo v. Holland, 32 AD3d 630, 631 [2006]). As further relevant here, owners are not strictly liable for injuries that result from a person being caught in the chain or leash of a dog while engaged in normal canine behavior (see Egan v. Hom, 74 AD3d 1133, 1133-1134 [2010] [summary judgment was granted dismissing the complaint where plaintiff was injured after becoming entangled in a dog's chain as the dog was "running around" defendants' yard]; see also Brady v. Contangelo, 148 AD3d 1544, 1545 [2017] [summary judgment was granted dismissing the cause of action alleging strict liability where plaintiff was injured after being knocked over by defendant or by the leashes attached to his two dogs during a walk in the park]). Inasmuch as plaintiff was injured when she became entangled in Sam’s cable when he engaged in the normal canine behavior of chasing a cat, Phillips is not liable for her injuries as a matter of law.2 Accordingly, Phillips and Bailey Place are entitled to summary judgment dismissing the complaint. Based on the foregoing, (1) plaintiff’s motion seeking a declaration that Travelers is obligated to defend and indemnify Phillips in this action is denied, Travelers’s cross motion is granted, and it is hereby adjudged that Travelers has no obligation to defend or indemnify Phillips in this action; (2) the summary judgment motions made by Phillips and Bailey Place are granted, plaintiff’s cross motion for summary judgment establishing Phillips’s liability for her injuries is denied, and the complaint is dismissed, with prejudice; and (3) plaintiff’s motion seeking leave to amend the complaint is denied as academic. This decision constitutes the order and judgment of the court. The filing of this decision, order, and judgment, or transmittal of copies hereof, by the court shall not constitute notice of entry (see CPLR 5513). Dated: July 8, 2020
