New Yorkers own hundreds of thousands of cats, dogs, farm animals and other pets. Thus, it is not surprising that accidents and injuries caused by animals are a fertile source of litigation. Several recent examples follow.
Thompson v. Brown, 2018 NY Slip Op 08736, App. Div. 3rd Dept. (December 20, 2018)
In an action for negligence arising out of the escape of a bull owned by defendants, Supreme Court granted plaintiff’s motion to the extent of finding that plaintiff sustained a serious injury within the meaning of the insurance law.
As to liability, the Appellate Division held that:
Turning first to the issue of defendants’ liability, “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal . . . is negligently allowed to stray from the property on which the animal is kept”…Defendant Douglas O. Brown, the farm owner, testified at his deposition that the cows were tied and secured with a hemp collar. Although Brown was responsible for making sure the cows were secured each evening, Brown did not personally check each stall to see if the cows were secure. Brown was shown a picture of the collar that was used for the subject bull and admitted that it was frayed at the end where the twine broke. Brown agreed that it “look[ed] bad” and that he would replace a collar if it was in such condition. Moreover, the barn doors were kept open during the night prior to the accident to keep the barn cool. Brown testified that if an animal escaped from his property, it would be foreseeable that the animal could make its way to Route 23. Indeed, Brown stated that cows, in the past, had escaped and went to Route 23. In view of the foregoing, as well as the police accident report, plaintiff demonstrated a prima facie case of liability against defendants[.]
Defendants, in opposition, failed to raise an issue of fact…To the extent that defendants contend that plaintiff was comparatively negligent, any such negligence, if proven, only diminishes the amount of recoverable damages and does not preclude a finding of liability against defendants…Furthermore, even though plaintiff did not specifically allege res ipsa loquitur, the failure to do so does not preclude its application, where, as here, it is warranted by the facts…Accordingly, that part of plaintiff’s motion seeking summary judgment on the issue of liability should have been granted.
And, as to “serious injury”, the Third Department held that:
Regarding the issue of whether plaintiff sustained a serious injury, plaintiff, as the party seeking summary judgment, was obligated to tender proof demonstrating, as a matter of law, that she suffered a serious injury and that it was causally related to the accident…In this regard, plaintiff relies on the fracture category. The only medical evidence that plaintiff submitted in support of her motion was the affirmed report of an orthopedic surgeon who conducted an independent medical examination of plaintiff. Although the orthopedic surgeon concluded that plaintiff suffered a fracture of her left fifth metacarpal as a consequence of the motor vehicle accident, the record is devoid of admissible medical evidence to substantiate this conclusion. The orthopedic surgeon noted in his report that he reviewed various radiographic studies but none of them was of plaintiff’s left hand. Furthermore, although the orthopedic surgeon noted in his summary of certain medical records that the radiographs revealed a nondisplaced facture of the left fifth metacarpal, these medical records were not submitted as part of plaintiff’s motion…It is unclear whether the orthopedic surgeon actually reviewed the specific radiographs identified in his summary of the medical records or whether he was reiterating the finding of a fracture by a treating physician and, if so, what the source was of this finding. Based on the foregoing, plaintiff did not meet her moving burden…and, therefore, that part of her motion seeking summary judgment on the serious injury issue should have been denied regardless of the sufficiency of defendants’ opposition thereto.
Cocuzza v. Love My Dawg, 2018 NY Slip Op 51508(U), App. Div. 2nd Dept. (October 25, 2018)
Small Claims Court dismissed this action after a non-jury trial.
The Appellate Term summarized the facts:
Plaintiff commenced this small claims action to recover the principal sum of $3,323.91, alleging that defendant had sold him the wrong breed of dog. At a nonjury trial, plaintiff testified that he had contracted to purchase an English Bulldog from defendant for $3,323.91. About two months later, plaintiff began questioning whether the dog was an English Bulldog as opposed to a French Bulldog. He obtained a DNA test, which revealed that the dog was part French Bulldog and not a full English Bulldog. Plaintiff’s witness, a veterinarian, also testified that the dog looked like a French Bulldog but that she was not qualified to determine a dog’s breed. Defendant’s owner testified that the information she had received from the breeder was that the dog was an English Bulldog and there was no question in her mind that the dog looked like an English Bulldog and not a French Bulldog[.]
The legal template:
Dogs have been held to constitute goods within the meaning of [the] Uniform Commercial Code, and defendant, a seller of dogs, is a merchant within the meaning [of the UCC]…Plaintiff appears to be arguing that he suffered damages as a result of defendant having delivered a nonconforming tender, as the dog’s breed allegedly did not conform to the contract. [T]he Uniform Commercial Code provides that, where the buyer has accepted goods and given notification, he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller’s breach, as determined in any manner which is reasonable. In addition, plaintiff may be arguing that defendant breached its express warranty…and that he is therefore entitled to damages[.]
Upon a review of the record, we find that plaintiff’s evidence failed to establish that the dog was not a full English Bulldog. Although small claims courts are not bound by statutory provisions or rules of practice, procedure, pleading or evidence…a small claims judgment may not stand on hearsay alone…While the court erred in not admitting into evidence and considering the DNA results, such error was harmless, as plaintiff failed to introduce any other competent evidence to establish that the dog was not a full English Bulldog…In any event, even if plaintiff had established that the dog was not a full English Bulldog, which he had bargained for, plaintiff failed to establish his damages by means of any competent testimony.
Nero v. Fiore, 2018 NY Slip Op 06755, App. Div. 2nd Dept. (October 10, 2018)
In an action to recover damages for conversion, Supreme Court granted defendant’s cross-motion to dismiss the complaint.
The Appellate Division summarized the facts:
The plaintiff, a trainer of protection and sporting dogs, and the defendant were involved in a romantic relationship. During the course of the relationship, they agreed to acquire a dog, which the plaintiff would train. In June 2013, an organization known as America’s Best Dog Trainers…shipped a dog to the plaintiff. The plaintiff entered into a contract…for the purchase of the dog with the written understanding that the dog was being sold to him at a reduced price upon the condition that he personally train the dog to compete in protection dog sports. The defendant wrote a $1,200 check for the dog’s purchase. After the plaintiff and the defendant ended their relationship, the defendant allegedly improperly and illegally took possession of the dog, prevented the plaintiff from continuing the dog’s training, and deprived him of possession of the dog.
The pleadings and prior proceedings:
[P]laintiff commenced this action, asserting a cause of action to recover damages for the defendant’s alleged conversion of the dog. He also asserted a second cause of action, in effect, to recover damages for the defendant’s alleged tortious interference with prospective business relations and tortious interference with the America’s Best contract. The plaintiff moved, inter alia, to direct the defendant to relinquish custody, control, and possession of the dog, and the defendant cross-moved…to dismiss the complaint. The Supreme Court, inter alia, granted the cross motion, concluding that the defendant was entitled to dismissal of the complaint on both grounds[.]
[W]e disagree with the Supreme Court’s determination to direct dismissal of the cause of action alleging conversion…Two key elements of conversion are the plaintiff’s (1) legal ownership or an immediate superior right of possession to a specific identifiable thing, and (2) the defendant’s unauthorized dominion over the thing in question or interference with it, to the exclusion of the plaintiff’s right…Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges that the plaintiff is the owner of the dog, that the defendant has unauthorized possession of the dog, and that the defendant has refused to return the dog.
Further, we disagree with the Supreme Court’s determination to direct dismissal of so much of the second cause of action as alleged tortious interference with contract…The elements of tortious interference with a contract are: “(1) the existence of a contract between plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff”…The complaint, as supplemented by the plaintiff’s affidavits, sufficiently alleges the elements of a cause of action to recover damages for tortious interference with a contract, including that the defendant’s intentional interference with the America’s Best contract rendered performance impossible[.]
However, we agree with the Supreme Court’s determination to direct dismissal of so much of the second cause of action as alleged tortious interference with prospective business relations…The plaintiff’s conclusory allegations are insufficient to state a cause of action to recover damages for tortious interference with prospective business relations[.]
Lupinsky v. Yarusso, 2018 NY Slip Op 05925, App. Div. 2nd Dept. (August 29, 2018)
Supreme Court granted defendant’s motion for summary judgment dismissing the complaint in an action recover damages for personal injuries.
The Appellate Division summarized the facts and prior proceedings:
On June 24, 2014, the defendant’s dog, then approximately 10 years old, allegedly bit the plaintiff’s left thumb. The plaintiff and the defendant worked together and were social friends. As the plaintiff had been to the defendant’s residence 20 to 40 times prior to the incident, he was familiar with the dog. The plaintiff commenced this personal injury action against the defendant. Subsequently, the defendant moved for summary judgment dismissing the complaint, contending that his dog did not have vicious propensities and that, in any event, he was not aware of any such propensities. The Supreme Court granted the motion, and the plaintiff appeals.
The legal template:
“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog…knew or should have known of such 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”…“Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm”[.]
Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that his dog did not have vicious propensities and, in any event, that he neither knew nor should have known of any such propensities…However, in opposition to the motion, the plaintiff raised triable issues of fact as to whether the defendant’s dog had vicious propensities, and whether the defendant knew or should have known of the dog’s alleged vicious propensities…According to an affidavit of the plaintiff’s neighbor Michael Walters, submitted in opposition to the motion, on two occasions prior to the incident, the defendant warned Walters to be careful near the dog because he bites. This affidavit was sufficient to raise a triable issue of fact as to whether the defendant had actual and/or constructive notice that the dog had vicious propensities[.]
Cintorrino v. Rowsell, 2018 NY Slip Op 05446, App. Div. 2nd Dept. (July 25, 2018)
Supreme Court denied defendant’s motion for summary judgment dismissing the complaint in an action to recover damages for personal injuries.
The Appellate Division summarized the facts and prior proceedings:
On the afternoon of October 31, 2013, the plaintiff allegedly sustained injuries when she was bitten by the defendants’ dog inside the defendants’ house. Subsequently, the plaintiff commenced this action against the defendants to recover damages for her personal injuries, alleging common-law negligence and strict liability. The defendants moved for summary judgment dismissing the complaint, contending that their dog did not have vicious propensities, and that they did not know or have reason to know of such alleged propensities. The Supreme Court denied the defendants’ motion [to dismiss].
The legal template:
Aside from the limited exception set forth in regarding a farm animal that strays from the place where it is kept…which is not at issue here, “New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal”…Accordingly, to the extent that the complaint in this action alleged a common-law negligence cause of action to recover damages for injuries caused by the defendants’ dog, the Supreme Court should have awarded summary judgment to the defendants dismissing that cause of action[.]
Reversing and concluding that:
To recover upon a theory of strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities, and that the owner of the dog knew or should have known of the dog’s vicious propensities…”Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm”[.]
Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that their dog did not have vicious propensities and, in any event, that they neither knew nor should have known that their dog allegedly had vicious propensities…In opposition, the plaintiff failed to raise a triable issue of fact.
Roche v. NY Breeder, 2018 NY Slip Op 50997(U), App. Div. 2nd Dept. (June 21, 2018)
Small Claims Court awarded plaintiff a judgment in the principal sum of $1,000.
The Appellate Term summarized the facts:
In this small claims action, plaintiff, alleging that the puppy he bought from defendant for $2,500 was not the breed that he had bargained for, to wit, a Parti Yorkshire Terrier, seeks a partial reimbursement of the purchase price of the dog. At a nonjury trial, plaintiff submitted the results of an online DNA test, which had showed that the breed of the dog was different from that listed on the contract. Plaintiff also testified that his dog’s ears were different from the average Yorkshire Terrier and that his dog weighed more than the average Yorkshire Terrier. Plaintiff submitted photographs of the breed that he had bargained for so that the court could compare his dog to the dogs in the photographs. Plaintiff further testified that he had subsequently purchased two other Yorkshire Terriers for $600 and $900. Defendant testified that the dog was the breed listed on the contract. Defendant also testified that the Parti color of the dog added a premium to the price.
The prior proceedings:
The Justice Court awarded plaintiff the principal sum of $1,000. Defendant appeals, arguing that the court erred in permitting a mail-in DNA test into evidence to establish the breed of the dog and that defendant’s request to have an independent DNA test performed at his own expense should have been granted.
The legal template:
In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law”…Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility…This deference applies with greater force to judgments rendered in the Small Claims Part of the court[.]
Small claims courts are not bound by statutory provisions or rules of practice, procedure, pleading or evidence…and, thus, it cannot be said that the court improvidently exercised its discretion in permitting plaintiff’s DNA test into evidence. In any event, plaintiff introduced other competent evidence that the breed of dog listed on the contract was not the dog he had been given. In addition, the court acted within its discretion in rejecting defendant’s request for an adjournment to get a DNA test.
And affirmed finding that “the judgment in this case provided the parties with substantial judgment.”
Long v. Hess, 2018 NY Slip Op 04475, App. Div. 4th Dept. (June 15, 2018)
Supreme Court denied defendant’s motion for summary judgment dismissing the complaint.
The Appellate Division summarized the facts:
[P]laintiff commenced this action seeking to recover damages for injuries she sustained when defendant’s dog, Kane, allegedly ran into her while running alongside plaintiff’s dog in a fenced-in area behind a school that is used as a dog park. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint[.]
The legal template:
Preliminarily, as plaintiff correctly concedes, “a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury”…We thus agree with defendant that the court erred in denying that part of his motion with respect to the negligence cause of action.
We further agree with defendant that the court erred in denying that part of his motion with respect to the strict liability cause of action, based upon Kane’s alleged vicious propensities. It is well established that “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”…”A known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act”…“In contrast, ‘normal canine behavior’ such as ‘barking and running around’ does not amount to vicious propensities”[.]
Here, defendant met his initial burden of establishing that he lacked knowledge of any vicious propensity on the part of Kane that resulted in the injury, and plaintiff, who relied solely upon defendant’s submissions, failed to raise an issue of fact…The evidence establishes that, on the day of the incident, plaintiff sent a text message to a group of people that included defendant, as she had on previous occasions, to inform them that she would be at the dog park with her dog, who often played with Kane. Immediately prior to the incident, plaintiff threw a ball for her dog, plaintiff’s dog retrieved the ball and, as he had frequently done in the past, Kane ran alongside plaintiff’s dog back toward plaintiff. Both dogs were running fast in plaintiff’s direction and, when it appeared that Kane was not going to veer off to the side, plaintiff turned away, whereupon Kane allegedly struck her leg. Despite evidence that Kane may have clumsily run around the dog park and similarly made contact with another visitor on a prior occasion, we conclude that, unlike situations in which a dog purposefully jumps onto or charges at a person…”[Kane’s alleged] act of running into plaintiff in the course of … playfully [running alongside another dog at a dog park] merely consisted of normal canine behavior that does not amount to a vicious propensity”[.]
Lillo-Arouca v. Masoud, 2018 NY Slip Op 05150, App. Div. 2nd Dept. (July 11, 2018)
Supreme Court granted defendant’s motion for summary judgment in an action to recover damages for personal injuries.
The Appellate Division summarized the facts and prior proceedings:
On May 15, 2014, the defendants’ dog bit the injured plaintiff. Thereafter, the injured plaintiff, and her husband suing derivatively, commenced this action against the defendants, alleging, inter alia, strict liability in tort for the attack. After joinder of issue and the filing of the note of issue, the defendants moved for summary judgment dismissing the amended complaint. The Supreme Court granted the motion[.]
The legal template:
“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog . . . knew or should have known of such propensities”…Vicious propensities include the propensity to do any act that might endanger the safety of the person and property of others…”Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm”[.]
Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing, through the deposition testimony of the defendant Ingrid Masoud, that the defendants were not aware, nor should they have been aware, that their dog had ever bitten anyone or exhibited any aggressive behavior[.]
Myers v. Lobman, 2018 NY Slip Op 51327(U), Sup. Ct. Suff. Co. (September 14, 2018)
Supreme Court entertained cross-motions for summary judgment in an action seeking damages for personal injuries allegedly sustained as a result of a dog bite.
Plaintiff alleged that on May 2, 2015 she was bit by a dog named Bronson, allegedly owned by defendants.
The Court summarized the deposition testimony:
Plaintiff testified that the subject dog named Bronson came to live in her home sometime in February or March of 2015, that Bronson came to live at her home at the request of her daughter Brianna, who was the girlfriend of defendants’ son, Jeff Lobman. Plaintiff testified that she only agreed to take Bronson for a month at a time and never agreed to take him permanently, and that Bronson lived at her home continuously and exclusively from either February or March of 2015 up until the date of the incident on May 2, 2015, a period of about three (3) months. Plaintiff further testified that while Bronson was at her home, the entire family fed the dog, that Bronson ate out of the same dog dish with plaintiff’s other three dogs, that during those meal times there was never an issue with Bronson and her other dogs, and that Bronson stayed in Brianna’s room in her house but otherwise “he had roam of the entire place.” Plaintiff further testified that defendants did not visit Bronson during the time that Bronson resided at her home, and she never contacted the defendants about Bronson while he was living at her home. She also never contacted Jeff Lobman, the purported owner of the dog at any time but only communicated to her daughter Brianna about Bronson. Further, the defendants never appeared at plaintiff’s home during the months that Bronson resided there. Defendant Matthew Lobman testified that his son Jeff purchased Bronson and had Bronson trained but that there were times that Bronson stayed with at his home. Mr. Lobman further testified that during the fall of 2014, Jeff transferred to Farmingdale College and he lived at the Lobman home with Bronson. Defendant Matthew Lobman further testified that there was an incident with Bronson in October or November of 2014 involving his wife, Marjorie Lobman, which resulted in them taking Bronson to the veterinarian, at which time Brianna Myers agreed to bring Bronson to live at the home of her parents where she resided. Defendant Marjorie Lobman testified that after the incident with Bronson sometime in October or November of 2014, she brought Bronson to the veterinarian, that Bronson left the Lobman household at that time, and that Brianna Myers then picked up Bronson from the veterinarian so that he could live with her at the home of her parents.
The legal template:
To recover in strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities…It is well established, however, “that liability will not be imposed when there is no evidence that the defendant owned, possessed, harbored, or exercised dominion and control over the dog”…and where the defendant “did not permit it to be on or in his or her premises”…”Although the term ‘harboring’ lacks a clear singular definition, one harbors a dog by ‘making it part of his or her household, even if he or she does not assume control over the animal”…”Thus, while the occasional presence of a dog in a premises does not rise to the level of harboring, where a dog is kept within a home on a consistent enough basis to become part of a household, it can be found that those who do not own the dog, but allow it to reside there and participate in its care, are harboring the dog”[.]
Here, defendants have established, prima facie, that at the time of the incident, they did not harbor the dog Bronson but rather, the dog was being harbored by plaintiff at her home. From at least March of 2015 through May 2, 2015, plaintiff and her family were caring for Bronson on a daily basis, plaintiff fed Bronson with her other dogs, plaintiff allowed Bronson to sleep at her home with her other dogs and allowed Bronson to roam about her entire house. Plaintiff made no attempt to contact Jeff Lobman, the dog’s owner, nor did she ever contact the defendants, the parents of Jeff Lobman, in regards to the care of Bronson or to request that they retrieve Bronson from her home. At the time of the incident, plaintiff was harboring Bronson by providing him with food and shelter…For all intents and purposes, Bronson was a member of plaintiff’s household at the time of the incident. Moreover, defendants relinquished any dominion or control of Bronson when they brought him to the veterinarian. Indeed, defendants “did not permit [the dog] to be on or in [their] premises”[.]
As to the merits, plaintiff submits an affidavit of her daughter Brianna Myers, who avers that Jeff Lobman purchased Bronson and that “at the time Jeff bought the dog, he lived with his parents, Matthew Lobman and Marjorie Lobman.” Brianna further asserts that “Bronson first came to stay with my family in early March of 2015 . . . my mother and father agreed only to let Bronson stay for a few weeks until the Lobmans found him a permanent home . . . . [w]e just did the Lobmans a favor.” Plaintiff testified that she never agreed to take in Bronson permanently. After the incident with Bronson, plaintiff testified that she told her daughter Brianna “just get him out of the house.” Plaintiff asserts that defendants are liable for her alleged injuries because they had harbored Bronson and as stated in her attorney’s affirmation “she only agreed to take in Bronson for a month, as a favor to her daughter’s boyfriend and his family who were fed up with the dog.”
Here, plaintiff has not raised any triable issue of fact which would defeat defendants’ entitlement to summary judgment…The uncontroverted evidence is that defendants took the dog Bronson out of their home and brought him to the veterinarian, that Brianna Myers, plaintiff’s daughter, picked up Bronson from the veterinarian and brought Bronson to live with her and her parents, and that plaintiff and her family cared for the dog Bronson from March of 2015 until May 2, 2015, the date of the incident. The undisputed evidence further establishes that from March of 2015 through the date of the incident on May 2, 2015, Bronson lived with, resided at, and was cared for exclusively by the plaintiff and members of her family, that Bronson ate out of the same dog bowls as plaintiff’s other dogs, that Bronson slept in plaintiff’s home with her other dogs, that at no time prior to the incident did plaintiff contact the defendants about removing Bronson from her home, and that defendants never went to her home to visit Bronson nor did they have any contact with plaintiff during the time that Bronson resided there. The evidence firmly shows that Bronson resided exclusively with plaintiff and her family without any contact with defendants from March 2015 through the date of the incident. The evidence clearly demonstrates that the defendants ceased harboring Bronson when they relinquished control of him by leaving him with the veterinarian. That Bronson temporarily resided with defendants previously, that their son, Jeff Lobman, had Bronson trained, micro-chipped, and neutered, and that defendants may have paid for Bronson’s veterinarian bills months prior to Bronson’s arrival at plaintiff’s home, is of no significance. The undisputed evidence demonstrates that plaintiff was harboring Bronson at the time of the incident, of her own free will, and with her consent. Thus, this Court finds, as a matter of law, that at the time of the incident, plaintiff and her family completely harbored Bronson, and as such, the defendants cannot be liable for any alleged injuries sustained by plaintiff[.]
Albina v. Citipups NYC Corp., 2018 NY Slip Op 33352(U), Sup. Ct. N.Y. Co. (August 29, 2018)
The Court, in entertaining cross-motions for summary judgment, summarized the facts:
In her complaint, plaintiff sues Citipups for breach of contract, promissory estoppel, breach of warranty and violation of section 349 of the General Business Law…based on a sale transaction, the sale of a dog. The complaint alleges that plaintiff purchased a dog from Citipups, and at the time of the purchase, Citipups failed to give plaintiff proper notice to her as a purchaser, and failed to provide her with a healthy dog or a dog fit for sale. After the sale, the dog became seriously ill and eventually died. Plaintiff alleges that the dog died soon after Citipups advised her to take the dog to the veterinarian. From Citipups, plaintiff seeks the recovery of money she paid for in veterinarian services, among other damages.
The pending motions:
Citipups moves for summary judgment dismissing the complaint. Citipups served an answer, which includes counterclaims sounding in defamation and unjust enrichment. Here, Citipups argues that plaintiff lacks standing to sue because she was not the purchaser of the dog. Submitting documentary evidence, Citipups contends that plaintiff’s “sister,” Christina, is the actual purchaser of the dog, as her signature is on the sales documents, not plaintiff’s. According to Citipups, the documents provide that all the warranties related to the sale are made to Christina in her capacity as a purchaser and are not transferable. Thus, Citipups contends that plaintiff cannot sue it over the warranties, even if she is the owner of the dog.
In reply, plaintiff admits not signing any documents and has alleged in the complaint that she did not take the dog out of the store. She states that her sister-in-law Christina took the dog on the day after she purchased the dog. Plaintiff also states that her sister-in-law signed the documents, but asserts that she, her sister-in-law, did not know what she had signed. Plaintiff insists that she is the owner of the dog, claiming that she purchased the dog with gift cards belonging to her husband. She states that the cards were used surreptiously by her, and she had intended to surprise her husband with the purchase of the dog. Plaintiff submits copies of payment receipts from the cards which bear the name and address of Citipups. Plaintiff also states that a copy of her driver’s license was made by Citipups in the course of the purchase.
Plaintiff makes a partial cross-motion regarding the payment of the veterinarian services and the dismissal of the counterclaims. She seeks the recovery of the service fees, contending that she paid in full the cost of the dog and has accurate records as to the amount of the service fees spent on the dog. She argues that she is entitled to the amount pursuant to section 753 of the GBL. She argues that Citipups’ counterclaims lack merit, fail to state any counterclaim, and should be dismissed.
Citipups contends that whatever claims in breach of contract, or breach of warranty can be brought against it, those claims can only be brought by the purchaser of the dog, which is Christina Albina. The sales documents submitted, which include the terms of sale, warranties and feeding instructions, were executed by Christina, which indicates her as the purchaser as well as the owner of the dog. The terms of the documents also expressly provide that the warranties of fitness, pertinent in this case, are not transferable…Citipups submits an affidavit from its employee, Matthew Rivera, which asserts that he went over the terms of the documents with Christina Albina. It is settled that a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms[.]
Plaintiff admits that she did not enter into any written agreement with Citipups and that her sister-in-law did execute the papers. Her argument that Christina did not know what she was signing is too conclusory. Plaintiff does not offer any details or evidence to substantiate her argument. Nor does plaintiff raise any issue about whether the execution of the documents was the result of fraud, coercion or mistake. Moreover, no affirmation or affidavit from Christina Albina has been submitted, which would ultimately resolve this matter. Here, Citipups has made out a motion for summary judgment. Once it succeeds in meeting its burden of entitlement to judgment, the burden shifts to plaintiff to demonstrate that there exists a triable issue of fact, precluding the granting of the motion[.]
Plaintiff has not shown an issue of fact and Citipups is entitled to its remedy. Thus, her claims regarding breach of contract and warranty are dismissed. With respect to her claim under section 349 of the GBL, which is broadly construed, one needs to allege that the subject transaction was consumer-oriented and involved fraud or deception of a material nature. Here, plaintiff failed to allege fraud on Citipups’s part with sufficient particularity…This claim is also dismissed.
Plaintiff’s cross-motion shall be determined as it applies to the counterclaims. In the answer, Citipups alleges that, on February 9, 2016, plaintiff told a New York Post reporter that Citipups intentionally sold her a sick and unhealthy dog, said statement [was] subsequently published in the newspaper and widely disseminated. Citipups alleges defamation per se on plaintiff’s part, asserting that the dog did not become ill until several days after the sale. Citipups also alleges in a separate claim that plaintiff failed to mitigate her damages and did not take the dog for treatment when she was instructed. Citipups alleges that plaintiff was contractually limited as to the extent of damages she could pursue.
In her cross-motion, plaintiff argues that the alleged defamatory statement was never reported or published. She refers to a deposition of David Jacoby, Citipups’ general manager, who testified, upon questioning from plaintiff’s counsel, that he could not specifically attribute any such words to plaintiff. Plaintiff contends that in the absence of any substantiated defamation by her, this counterclaim is dismissed.
* * *
Defamation consists of a false statement published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se…A statement that suggests improper performance of one’s professional duties constitutes defamation per se…Plaintiff has submitted proof that the alleged defamatory statement was not substantiated by Citipups. Regarding unjust enrichment, it has been shown that plaintiff’s damages are not subject to the terms of the sales documents, because she did not execute any of the documents. Plaintiff made out a cross-motion for summary judgment, and Citipups failed to respond with evidence indicating a triable issue of fact which would preclude the granting of judgment.
Tichner v. Goldens Bridge Inc., 2018 NY Slip Op 31488(U), Sup. Ct. N.Y. Co. (July 2, 2018)
Supreme Court entertained a motion to dismiss in an action to recover for fraud and other relief in connection with the purchase of a horse.
Supreme Court summarized the facts:
Briefly, as alleged in the complaint, Tichner sought to purchase a horse for her daughter to use in beginner horse competitions. In March 2012, Tichner contacted [Heritage Farm] to find a suitable horse to be used for competitions and for potential resale at a later time. The complaint asserts that [Heritage Farm] eventually found a horse named Sports Talk, who was “the perfect horse” for Tichner’s needs, and “an incredible jumper.” Tichner then requested that [Heritage Farm] obtain a pre-purchase medical exam of the horse, and they arranged such an exam with Miller, a [veterinarian]. Miller conducted the pre-purchase examination of Sports Talk, including radiography, and advised Tichner that Sports Talk was “sound, healthy, possessed no physical defects, was fit for competitive jumping and was a good investment pony.”
Tichner purchased Sports Talk from…Lane Change Farms for $175,000, and Tichner’s daughter began riding Sports Talk in competitions. In November 2012, Sports Talk was moved to Florida, where a new trainer, Richard Cunkle, allegedly informed Tichner that something was wrong with the horse, and asked to see the pre-purchase examination report and radiographs. Tichner alleges that the radiographs that had been examined by Miller revealed physical defects in the horse’s feet that resulted in Sports Talk’s inability to compete.
The pleadings and prior proceedings:
Tichner commenced this action in April 2013. The gravamen of the complaint is that the defendants concealed the negative information about Sports Talk’s physical health in order to induce Tichner to purchase the horse.
The complaint asserted causes of action to recover for fraudulent misrepresentation, negligent misrepresentation, breach of contract, professional malpractice…deceptive business practices…breach of express warranty, breach of implied warranty of merchantability, and breach of warranty of fitness for a particular purpose. Only the fraudulent misrepresentation, negligent misrepresentation, breach of contract, professional malpractice causes of action remain.
The misrepresentation claim:
“A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.”…To establish a prima facie claim of fraudulent misrepresentation, a claimant must establish a misrepresentation or concealment of a material fact, falsity, scienter on the part of the wrongdoer, justifiable reliance, and resulting injury[.]
* * *
Miller established its prima facie entitlement to judgment as a matter of law dismissing the negligent misrepresentation and fraudulent misrepresentation causes of action against it with the affidavit of Christopher B. Miller, in which he asserts that he properly rendered an opinion based on his veterinary expertise, and that he made no misleading statements to the plaintiff. The plaintiff does not oppose or address these arguments. Since the plaintiff thus did not raise a triable issue of fact in opposition to Miller’s showing in this regard, Miller is entitled to summary judgment dismissing those causes of action against it.
The veterinary malpractice claim:
In order to establish a case of veterinary malpractice, a plaintiff is required to show a deviation or departure from accepted veterinary practice, and that such departure was a proximate cause of the injury[.]
In support of its motion for summary judgment, Miller submits an expert affidavit from Dr. James Orsini, who is, among other things, a board certified veterinary surgeon and the Director of the Laminitis Institute at the University of Pennsylvania School of Veterinary Medicine. Orsini’s detailed affidavit concludes that Miller’s examination of Sports Talk was conducted in accordance with the appropriate standard of care. Orsini further opines that nothing in Miller’s report was false or misleading. He states that nothing in the radiography or other parts of the examination indicate that Sports Talk was unsound or suffered from any abnormalities at the time of the examination. Miller thus makes a prima facie demonstration of entitlement to judgment as a matter of law.
In opposition, the plaintiff submits an affidavit from Dr. Thomas Griffith, who is a doctor of veterinary medicine with a practice focused on horses. Dr. Griffith states that he reviewed the radiography at issue, and opines that Miller deviated from acceptable medical practice by not informing Tichner, as a prospective purchaser, of certain findings in the radiography. Specifically, he states that the x-rays revealed certain findings that might suggest the presence of inflammation or laminitis. As such, he states that Dr. Miller should have notified Tichner of these findings, and that further medical consideration of Sports Talk’s condition was warranted.
Although Dr. Griffith concedes that the positive radiographic indicators to which he refers are not unusual in horses, and do not necessarily indicate the presence of lameness or soreness, his affidavit is sufficient to raise a triable issue of fact as to whether Miller deviated from good practice and whether such deviation proximately caused the horse to develop lameness and soreness in the course of competitions, which he opines would not likely have occurred had the plaintiff been informed of the full extent of the radiographic results.
And defendant’s cross-motion for summary judgment:
[Heritage Farm] purportedly cross-move for summary judgment dismissing the causes of action to recover for fraudulent and negligent misrepresentation and for breach of contract as against them. These causes of action arise from Tichner’s assertions that defendants failed to provide her with a horse that was suitable both for use by her daughter in competition and for future resale, and that [Heritage Farm] failed to inform her that the horse suffered from defects in its feet, including the possibility of laminitis.
[Heritage Farm] contend[s] that they delivered to Tichner precisely what she bargained for, and that their representations concerning the suitability of Sports Talk for competition and for resale were based, in large part, on the report from Miller that the horse was sound and not suffering from any physical disabilities. They submit an affidavit from Patricia Griffith, in which she asserts that she relied on Miller’s report to the same extent as Tichner. They also submit evidence demonstrating that Sports Talk successfully competed in jumping competitions, both before the sale to Tichner, and for an extended period of time after Tichner’s daughter began riding the horse in competitions. They further rely on the deposition of Tichner’s daughter, in which she testified that she had success in riding Sports Talk competitively, and did not believe that the horse was lame or unfit for competition. [Heritage Farms] further note[s] that Tichner’s daughter testified that she stopped riding Sports Talk because, as she got older, she needed a bigger horse. [Heritage Farms] thus made a prima facie showing that they are entitled to judgment as a matter if law dismissing the remainder of the complaint against them.
In opposition, Tichner argues that a triable question of fact exists as to whether Sports Talk was suitable for competition and for resale, and whether [Heritage Farms] concealed that the horse suffered from physical defects. Tichner, however, does not submit any evidence that [Heritage Farms] were themselves informed by Miller of the radiographic indicia that she contends Miller should have explained to her. Nor does she submit any evidence that [Heritage Farms] breached any contractual obligation, since neither her affidavit nor that of her retained expert rebuts the showing made by [Heritage Farms] that, when the horse was sold, it was and would be able to compete in jumping exercises and competitions.
Although Tichner alleges that her trainer in Florida indicated that the horse might have physical problems, the trainer has submitted an affidavit in this action in which he states that Sports Talk did not exhibit any physical defects while under his care, and he knew of no reason why the horse could not be resold. Moreover, while Tichner states that, in November 2012, a Dr. Byron Reid took x-rays of Sports Talk, which showed rotation in the horse’s feet, that exam was conducted after Sports Talk had competed in numerous competitions, and thus does not demonstrate that such a condition existed when the horse was examined and purchased in March 2012.
The Court dismissed the causes of action for fraudulent and negligent representation against Miller and all claims against Heritage and Griffith.
Smith v. Linden Brewery, Inc., 2018 NY Slip Op 28255, Sup. Ct. K. Co. (February 20, 2018)
Defendant moved for summary judgment dismissing the complaint in an action to recover damages for personal injuries.
The Court summarized the facts:
Plaintiff alleged that on August 6, 2010 she was injured when a Labrador Retriever jumped at her and knocked her down in the small vestibule of the residential building located on the Premises, also known as Linden Brewery. Third-party defendants Ellisa Bosshart and Matthew Bosshart…owned the Labrador Retriever, named Cooper. Fatatos owned a Cockapoo, named Maggie. The Bossharts rented an apartment from co-defendant Fatato Associates, L.P. on the neighboring property. At the time of plaintiff’s accident, Cooper was a 2-year-old puppy and resided in the apartment with the Bossharts and their young children and two cats…Cooper also received training from a licensed dog trainer and was friendly towards people…Plaintiff testified that on the day of her accident she was an overnight guest of Fatatos at the Premises.
Plaintiff testified that she became aware that Cooper was inside Fatatos’ residence shortly before her accident; hence, she wanted to retrieve Maggie from the courtyard in front of the house. Plaintiff was standing in the doorway between the interior door and the screen door in the vestibule when she called Maggie to go inside the house. As plaintiff was holding the screen door open for Maggie, she saw Cooper approaching Maggie. Then, Maggie ran through the doorway and through plaintiff’s feet. Cooper followed Maggie and jumped at plaintiff as the two dogs came almost simultaneously into the vestibule. Plaintiff fell back on the floor in the vestibule and Cooper landed on top of her. Cooper did not bite plaintiff. Ronald Fatato Jr. immediately came over to the vestibule, pulled Cooper away from plaintiff, and removed the dog from the house. Two days after her accident, plaintiff went to an emergency room to treat her injuries.
The legal template:
“For [over 200] years [now], the law of this state 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 causes as a result of those propensities”…Vicious propensities constitute the “propensity to do an act that might endanger the safety of the persons and property of others in a given situation, including behavior that is dangerous but not necessarily aggressive”…”Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm”[.]
The strict liability claim:
“Strict liability for damages arising from the vicious propensities and vicious acts of a dog extends to a person who harbors the animal although not its owner”…A person “harbors a dog by making it a part of his or her household,” even if he or she does not assume control over the animal…Furthermore…the Agriculture and Markets Law defines harboring as providing food or shelter to a dog…However, there can be no strict liability arising from the vicious propensities and vicious acts of a dog “against a defendant who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises”[.]
Here, the Court finds that Linden Brewery met its burden of proof to show, prima facie, that it did not harbor, exercise dominion or control, or permitted the Bossharts’ dog, Cooper, to remain on the Premises. In support of its motion for summary judgment, Linden Brewery submitted deposition testimony of Ronald Fatato that clearly establishes that neither Fatatos, nor Linden Brewery, harbored Cooper, as the dog entered the Premises and Fatatos’ kitchen only one time prior to the day of plaintiff’s accident, in July 2010, when Mrs. Fatato left the front door to their residence open…At the time of this incident, Ronald Fatato immediately removed Cooper from the kitchen by coaxing the dog to go outside, without Cooper displaying signs of resistance or aggression…Linden Brewery thus established that it did not, nor did Fatatos, exercise any form of dominion or control over Cooper. Nor did they provide food or shelter to Cooper, or allow him to be in Fatatos’ residence or on the Premises. Therefore, the occasional and brief presence of Cooper on the Premises does not rise to the level of harboring and plaintiff failed to raise any triable issue of fact with regard to this matter[.]
Knowledge of vicious propensities:
The owner or harborer of a dog that exhibits vicious proclivities is not entitled to the “one free bite rule” and even a dog that “has not previously bitten or attacked may subject the owner or harborer to strict liability where its propensities are apparent,” such when the dog growls, snaps, or bares its teeth…Indeed, knowledge of a dog’s vicious or violent proclivity “may be established by, among other things, proof of prior acts of a similar kind of which the owner [or harborer] had notice”[.]
Moreover, “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”…Thus, “a known tendency to attack others, even in playfulness, as in the case of an overly friendly large dog with a propensity for enthusiastic jumping up on visitors” will be sufficient to find that the dog has vicious propensities and to hold the defendant strictly liable for plaintiff’s injuries stemming from such act of the dog…Nevertheless, plaintiff must “demonstrate that the defendant knew of the dog’s vicious propensities before the plaintiff could recover for the injuries caused by the dog”[.]
Here, the Court finds, as a threshold matter, that Cooper did not have vicious or violent propensity to jump on or running into people and Linden Brewery proffered sufficient evidence to establish, prima facie, that it did not have knowledge of such alleged vicious proclivities. In its motion and reply, Linden Brewery avers that Cooper did not have vicious proclivities and Linden Brewery had no knowledge of same because Cooper did not attack, bite, snap, bark, or snarl at anyone prior to plaintiff’s accident…In support of the motion, Linden Brewery submitted the deposition testimony of Ronald Fatato and declaration of Louis Fatato. This evidence shows that although Cooper had previously been running away from the Bossharts, Cooper ran into Fatatos’ home on one occasion in July 2010 prior to plaintiff’s accident. While the dog was inside the house, he did not bite anyone, snap or snarl at anyone, nor was Cooper in other ways aggressive…Furthermore, Linden Brewery argues that plaintiff testified that no one told her anything about Cooper on her prior visits to Fatatos’ residence[.]
In opposition, plaintiff argues that there is an issue of triable fact as to whether Cooper had vicious proclivities and Linden Brewery had knowledge of them because Ronald Fatato had suffered similar injuries as plaintiff as a result of the June 2010 escape incident…Plaintiff points out that during that incident Cooper jumped over a 2-3 feet high wall to enter Fatatos’ residence and then jumped on Ronald Fatato in the kitchen. Since Cooper exhibited this pattern of “bad behavior,” plaintiff asserts, a question of triable fact arises as to whether Linden Brewery could be strictly liable for plaintiff’s injuries…However, contrary to plaintiff’s assertion, Ronald Fatato testified that the dog was merely jumping around the kitchen and he did not jump at Mr. Fatato or attack him, nor was Cooper aggressive…Furthermore, Ronald Fatato stated that Cooper was playful and excited, and did not snarl or bark at him…Ronald Fatato coaxed Cooper to go outside and the dog left the kitchen without resistance[.]
* * *
Here, plaintiff testified that after Maggie began running towards plaintiff and the door she was holding open, Cooper followed Maggie and allegedly jumped on plaintiff when the two dogs entered almost simultaneously the vestibule of Fatatos’ residence. Thus, as plaintiff’s testimony shows, she found herself in the way of two running dogs, with Cooper following Maggie, and he tried to run through the open doorway in which plaintiff happened to be standing. Plaintiff also testified that…Cooper snapped and barked at plaintiff while the dog was on top of her for a short while after they both trampled down, as the doors have already closed and they became trapped inside the vestibule until Ron Fatato Jr. removed Cooper from the house[.]
Most importantly…there is no evidence that Cooper jumped at anyone prior to plaintiff’s accident. Cooper was a family dog that the Bossharts kept unconfined and unchained and he did not exhibit threatening behavior in the past…Taken together, Linden Brewery thus proffered sufficient evidence to make its prima facie case that it did not have knowledge of Cooper’s vicious proclivities, did not own, harbor, exercise dominion or control over the dog, and did not allow Cooper to remain on its Premises. In opposition, plaintiff failed to raise a triable issue of fact that Linden Brewery had notice of Cooper’s vicious propensities. Therefore, Linden Brewery’s motion for summary judgment seeking to dismiss plaintiff’s claim that Linden Brewery is strictly liable for plaintiff’s injuries caused by the dog is granted.
And the common law negligence claim:
New York rejects the majority rule that allows holding animal owners liable for negligence lawsuits for failing to restrain or supervise a domestic pet…[“New York society has had no reasonable expectation that all domestic pets will be perpetually confined in their homes or physically restrained at all times. . . . The average New Yorker knows or ought to know that he or she will encounter insufficiently restrained pets, which are not confined to the owner’s premises and may harm others depending on the disposition of the pet and the degree of training it has received.”]).
In its motion for summary judgment and reply, Linden Brewery correctly maintains that it cannot be held liable for plaintiff’s injuries under the theory of negligence because New York does not recognize a cause of action for negligent owner liability for injuries caused by a domestic animal…Plaintiff argues, in opposition, that Linden Brewery should have taken precautionary measures to prevent Cooper from intruding onto the Premises, such as insisting that Cooper be caged or removed from the Bossharts’ apartment, or that Linden Brewery should have notified Animal Control about Cooper’s prior incident at Fatatos’ residence in June 2010[.]
The Court finds, however, that plaintiff’s argument that liability for her injuries attaches to Linden Brewery on the grounds of negligence is unavailing. With regard to dogs in particular, the Court of Appeals held most recently…that owners of domestic pets may not be held liable for negligence for failing to “confine the animal to the owner’s property or to restrain the animal” on the owner’s property or in other locations, and “from running into another person”[.]
Here, Cooper escaped the Bossharts’ apartment and intruded onto the property owned by Linden Brewery on two separate occasions. In her opposition, plaintiff contends that as an invitee to the Premises she was entitled to a safe environment, which Linden Brewery failed to provide to protect plaintiff from harm caused by Cooper…Linden Brewery does not stand in the shoes of an owner or harborer of Cooper and Linden Brewery is not otherwise strictly liable for damages caused to plaintiff by Cooper. [Plaintiff is precluded] from bringing her common-law negligence claim against Linden Brewery for failing to restrain Cooper so as to prohibit the dog from entering the Premises and running into plaintiff…Therefore, the branch of Linden Brewery’s motion seeking to dismiss the common-law negligence claim against it is granted[.]
Lucas v. Platt, 2018 NY Slip Op 31719(U), Sup. Ct. N.Y. Co. (July 20, 2018)
Supreme Court entertained defendant’s motion for summary judgment dismissing the complaint.
The Court summarized the complaint:
The Complaint alleges two causes of action, sounding in negligence and strict liability, respectively, for injuries arising out of an incident on October 4, 2014, when Lucas was attacked by a dog owned, maintained, controlled, and/or supervised by Platt. The Complaint alleges that Lucas was walking on the sidewalk near 128th Street and Saint Nicholas Avenue, New York, New York and that Platt or a member of her household was walking the dog when the dog attacked Lucas. The Complaint further alleges, in sum and substance, that, prior to the October 4, 2014 incident, the dog had vicious propensities about which Platt either knew or should have known.
The Answer contains a general denial of all the allegations in the Complaint except for paragraphs two and three, which alleged, respectively, that Platt was and still is a resident of New York County and that Platt owned a “certain dog,” that being the dog referred to throughout the Complaint[.]
Defendant argues in support of her motion for summary judgment that she has shown prima facie entitlement to judgment as a matter of law by demonstrating that she had no knowledge or notice of Taurus’s alleged vicious propensities. Defendant further argues that Taurus had never bitten anyone, nor had he ever growled, snarled, or lunged at any person or animal, nor had he otherwise displayed any other vicious propensity prior to the October 4, 2014 incident. Defendant also argues that Plaintiff’s cause of action sounding in negligence for Taurus’s attack on him must be dismissed because New York does not permit recovery in negligence for injuries resulting from a dog bite.
The deposition testimony of Melvin Lucas:
[L]ucas stated [that] he was attacked by a dog he identified as a “pit bull” belonging to Platt, whom he did not know personally prior to the attack…Lucas also stated that he had never seen the dog that attacked him before the incident.
Lucas stated that he had been walking with his friend of over 20 years, Maurice Graham, on the sidewalk on Convent Avenue, near 127th Street and Saint Nicholas Avenue, by Saint Nicholas Terrace. Lucas further stated that he had been at a cookout in a nearby park and had left about ten minutes prior, to walk to meet up with his eldest daughter in the area, when he first saw the dog that would bite him. Lucas estimated that he was “[a] couple of steps. A couple of feet” away from the dog when he first saw it[.]
Lucas stated that he observed that the dog was black and brown-colored, came up a little bit past his knees when standing normally on all fours, and stood about four to five feet tall when up on its hind legs. Lucas further stated that he observed that the dog was on a leash being held by a young woman, about 17 years old, who was standing still and talking on her cellphone. Lucas further stated that there was no one between him and the young woman, but that there were groups of people nearby, in and around the park and attending the cookout. Lucas described the leash as looking like it was made of “a cloth that was ripped”…as “[v]ery rickety looking, torn…and damaged”…and as attached to a collar that “was made out of like — like a cloth…[that] wasn’t a leather collar[.]
When asked to explain, “[c]hronologically, what happened?”, Lucas stated, “I was walking down the street and the dog was — the dog was barking viciously, but before I even got down the street, halfway down the street, the dog was barking and on two legs up, on [hind] legs lurching off the leash.”…Lucas further stated that the dog was barking and its “teeth were showing” before it attacked, while on its hind legs[.]
Lucas stated that, as he and Mr. Graham were walking past the young woman holding the leash, the dog “lurched . . . [t]he leash snapped, snapped right off…[and] I turned around and [the dog] was after me, for no reason.”…Lucas stated that the dog was “unprovoked.”…Lucas then stated,
I turned around and I was — I was in — I was in a — in a disarray of trying to move and dodge and it went straight for my leg. It went straight for my legs, legs. And it — it grasped my left leg. It caught my left leg. It bit and I felt it sink down and lock jaw on my leg.
[L]ucas further stated that the dog bit him “[o]nce and locked…and shaked.”…When asked if there came a point when he fell from his feet, Lucas replied, “Yes.”…When subsequently asked, “[d]id there come a point when the dog was released from your leg?”, Lucas replied, “I don’t remember the dog releasing. I know he was locked on and I had to climb up on an SUV to get the dog off of me. I don’t know how he got off of me. I was doing my best to climb up, because all I thought was to go up.”…Lucas stated that the dog bit him on the lower extremity of his left calf, about two centimeters from his left Achilles tendon, and that “[t]he size of the bite is about the size of a hockey p[u]ck.”…Lucas further stated that he believed the dog bit his fingers and that he was bleeding from his left elbow and kneecap.
Lucas stated that he told Mr. Graham to take his cellphone and call 911. Lucas further stated that, at that point…Platt appeared. Lucas stated that he observed that Platt had a bowl of peroxide and was moving her lips as if to say the word “sorry” but was not vocalizing it…Lucas further stated that the ensuing wound required 6-8 hours of surgery, performed immediately after the attack. Lucas then stated that the attack has left him with no feeling in the top of his left foot, which his doctor said could be due to a severed nerve.
When asked who, other than the young woman and Mr. Graham, witnessed the attack, Lucas stated that there were several people who saw it. When asked for their names, Lucas replied, “Wendy. She walks dogs in the neighborhood. She’s very familiar of who has dogs in the neighborhood. And the dogs that she has are Rottweiler[s].”…Lucas further stated that he believes Wendy has four Rottweilers.
Lucas stated that he knows Wendy from the neighborhood. Lucas then said that Wendy “heard about the incident” and told Lucas, “I know what happened to you.”…When then asked if he knew whether Wendy saw Lucas get attacked, Lucas answered, “I don’t know” and further stated that he did not know where Wendy was at the time of the attack[.]
Lucas stated that Wendy approached him after the attack, when Lucas was on crutches, and said that she had heard what happened to him. Specifically, Lucas stated that Wendy said, “I heard what happened to you, man. That’s not good. That’s not right. That dog has attacked several people in this neighborhood already.”…Lucas then stated that Wendy told him that someone named Brandon had been attacked by the dog previously. Lucas further stated that Wendy said, “I am the most severe out of that dog, that dog is vicious.”…Lucas further stated that Wendy said that the dog attacked Brandon and “bit him several times.”…When asked, “[d]id Wendy tell you how she knew that?”, Lucas answered, “[i]t was seen…She saw that. She saw the dog attack Brandon, with me being the most severe. I’m the third person, the most severe…”Lucas also stated that he first learned who Platt was from Wendy after speaking with Wendy approximately one week after the incident[.]
The deposition of Carla Platt:
[P]latt stated that…she lived at 10 Saint Nicholas Terrace in an apartment with her five children, aged 23, 20, 19, 14, and 7. Platt further stated that, at that time, there were two dogs living in her apartment: Brownie, a dog she owned; and Taurus, the dog that attacked Lucas. Platt further stated that her daughter, Yasmin Abdus, obtained Taurus when, about five months prior to the October 4, 2014 incident, someone whom she didn’t know handed him to her. Platt further stated that Ms. Abdus was keeping Taurus in Platt’s home, with Platt’s permission, until she could find him a new, permanent home. Platt described the dog as a medium-sized pit bull.
When asked, “[p]rior to October 4, 2014, can you describe [Taurus’s] general disposition towards people?”, Platt responded, “I wouldn’t be able to answer that completely. I can only tell you about the people that were around him. I don’t know about anyone else. Taurus was a very sweet dog. He was very gentle around small children. To my knowledge, he was a good dog.”…Platt stated, in sum and substance, that she never observed Taurus behaving violently or aggressively—no lunging, growling, baring of teeth, biting, snapping, barking, or pulling or straining against the leash, or moving toward a person or animal—nor was she aware of any such behavior prior to the October 4, 2014 incident. Platt further stated that she would not put Taurus in another room when visitors came over.
When asked how she became aware of the October 4, 2014 incident involving Taurus and Lucas, Platt answered, “I heard the commotion downstairs in a matter of seconds from the time [Ms. Abdus] left the apartment, the building, and I ran downstairs…I heard growling, I heard Yasmin yell.”…Platt stated that she then went outside. When asked if she had ever heard Taurus make the growling noise that she heard before, Platt answered, “[n]o.”…Platt then stated that she saw Lucas on top of her car with Taurus biting his leg and with Ms. Abdus trying to pull Taurus off the leg. When asked, “[w]hat efforts were made to get the dog off Mr. Lucas?”, Platt replied, “[w]ell, they somehow got him off. He ran to the street and I grabbed him [and] took him into the house.”…Platt then stated that she told the shelter she did not want the dog returned to her after the incident.
The deposition testimony of Yasmin Abdus:
[M]s. Abdus stated that she is Platt’s daughter and lived with her, her four siblings, and their two cats and dogs…Ms. Abdus further stated that the family obtained Taurus between the end of May and the beginning of June 2014 when, as Ms. Abdus was walking from Central Park one day, she was stopped by a woman she had never met before who asked Ms. Abdus to take the dog. Ms. Abdus further stated that she “didn’t ask a lot of questions” of the woman and “was just happy to get a dog.”[.]
Ms. Abdus stated that she saw and heard Taurus growl on one occasion, on the day she got him. When asked to describe what she observed that day, Ms. Abdus responded, “I got him and I came to my neighborhood and I was showing the people the dog. And it was like a lot of people. And he just came behind me just growled, but that was it.”…Ms. Abdus stated that the people were bothering Taurus and that the entire episode lasted for less than a minute. Ms. Abdus further described Taurus as “scared” at the time…When asked whether Taurus showed his teeth at the time, Ms. Abdus answered, “[n]o” and confirmed that Taurus’s mouth was closed when he was growling…Ms. Abdus then stated that Taurus was on a leash that day, but was not pulling against the leash— rather, Taurus stood behind her and sat down between her legs.
Ms. Abdus stated that, prior to the October 4, 2014 incident, she never observed Taurus lunge at, run after, or bite a person or animal, nor did she observe Taurus growl at another dog. Ms. Abdus further stated that, prior to the October 4, 2014 incident, Taurus never strained or pulled against his leash. Ms. Abdus stated that Taurus was “super friendly with other animals. Cats, dogs” and “never had an issue with other animals.”[.]
Ms. Abdus stated that she did not know Lucas prior to the October 4, 2014 incident. Regarding the incident, Ms. Abdus stated that the leash she had Taurus on was new—a day old—from Petco, was “[v]ery, very limited [and] [s]hort] in length, and did not break. In sum and substance, Ms. Abdus stated that she did not remember what happened leading up to the incident, what caused it, or whether Taurus pulled the leash out of her hand. Ms. Abdus further stated that, after the attack commenced, she remembered trying to get Taurus off Lucas. Ms. Abdus stated that there was a lot going on at the time, that she did not remember much, but that Lucas was hitting Ms. Abdus with a closed fist during the incident.
Ms. Abdus stated that, sometime after Taurus was off Lucas, Lucas jumped onto the hood of Platt’s truck. Ms. Abdus then stated that she brought Taurus upstairs to her apartment and, about ten minutes later, went back outside with Taurus to give him up to the police. Ms. Abdus further stated that, two days later, she heard Platt say over the phone to someone that the family did not want to reclaim Taurus and “[t]hat [Platt] couldn’t take him back.”[.]
The deposition testimony of Marcus Graham:
[M]r. Graham stated that he has probably known Lucas for about 30 years from around the neighborhood. Mr. Graham further stated that he was walking home with Lucas from a cookout when the incident occurred. When asked to describe what happened to Lucas on October 4, 2014, Mr. Graham said,
While we were leaving the park, we were coming down a hill. I observed a young lady coming out of her building with a dog, phone in hand. She had the leash in the other hand. The dog was, may be — like, how the leash is long, the dog is in front of her. About 30 seconds later, the dog got away from her and went after [Lucas] the first time. He got away. He jumped on top of a car. After that, the dog grabbed him by his leg. I started hitting the dog on the side, trying to get him off. He didn’t get off. [Lucas] was yelling, ‘Get the dog off of me. Get the dog off of me. It’s going to ‘F’ up my career. It’s going to ‘F’ up my career.’ After that, an older lady came up and was, like, `Get off of him. Get off of him. Oh, no, not again. After that, the dog got off [Lucas] and she took the dog in the house.
Mr. Graham described the dog as an American pit bull, medium-sized, about 50 to 60 pounds. Mr. Graham further stated that he had seen Platt walking the dog in the neighborhood two or three times prior to the incident, the first time being about six months prior to the incident.
Mr. Graham stated that the dog was biting Lucas “[a]ggressively” with a “strong grip, trying to pull him off the car.”…Mr. Graham estimated that the dog was biting Lucas for “[a]bout two to three minutes.”…Mr. Graham stated that he heard a “faint growl” coming from the dog as it bit Lucas…Mr. Graham indicated that, as Lucas was trying to shake the dog off his leg, Mr. Graham hit the dog in the ribs more than ten times, but the dog continued to hold onto Lucas. Mr. Graham stated that Ms. Abdus “was trying to get the dog [and said] ‘[g]et off of him’ and [was] doing what she had to do, but the dog was not listening to her at all.”…Mr. Graham then stated that he observed Platt come outside, say, “Get off of him. Get off of him. Oh, no, not again”, and grab the dog by the neck. Mr. Graham next stated that, at that time, he observed that the dog was not wearing a collar. Mr. Graham described the dog as “still aggressive” after Platt grabbed him, as Platt was taking him indoors after Taurus released Lucas’s leg[.]
When asked whether he knows of a neighbor named Wendy, Mr. Graham replied that he has known a woman by the name of Wendy Murray for about 40 years. Mr. Graham stated that he had seen Ms. Murray a few days before his [testimony] out walking her four Rottweilers and that he believes she lives on 127th Street between Saint Nicholas Terrace and Convent Avenue.
The records from New York City Animal Care and Control:
[T]he AC&C Records state that a dog named “Cheesecake”, a pit bull mix with Animal ID no. A1016393, was brought to AC&C on October 4, 2014…On a page labeled “Memos For A 1016393”, a memo dated October 5, 2014, at 12:53 a.m., states, “Dog was growling upon intake. When this dog was tethered to the wag he lunged at staff while they were walking by. Be very careful when dealing with this dog.”…A further memo states that “This dog attacked a man as he was walking past him” and lists Lucas as “victim” and Platt as “[o]wner.”…A further memo indicates that, on a phone call with AC&C, Platt identified the dog “Cheesecake” as “Taurus.”…Further notes indicate that Platt stated that she was not interested in reclaiming Taurus, that AC&C requested to euthanize Taurus, and that staff were directed to proceed with the euthanasia on October 18, 2014…A medical history report indicates that Taurus weighed 46.80 pounds and, on October 7, 2014, was noted as “very tense, nervous during exam.”[.]
The records from the Office of Veterinary Public Health Services:
[O]n a page with New York City Department of Health and Mental Hygiene (“DOH”) letterhead and the title “Case Information”, a report indicates that a pit bull named “Cheesecake”, with “ACC Intake No. A 1016393”, bit Lucas on October 4, 2014…The Case Information page lists Platt as Cheesecake’s owner. A DOH “Bite Report”, dated October 5, 2014, states that Cheesecake was a male, unneutered pit bull mix of approximately two years of age…The Bite Report indicates that the dog, owned by Platt, bit Lucas on October 4, 2014, at 5:35 p.m.
And addressed the various claims:
In the first instance, Lucas’s first cause of action, sounding in negligence, cannot be sustained in this state and must be dismissed as a matter of law…As such, the Court will now consider whether to dismiss Lucas’s cause of action sounding in strict liability.
“`For at least 188 years, the law of this state 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 causes as a result of those propensities.’”…”The `vicious propensity’ doctrine provides for strict liability against [such] an owner…[and] [t]he term `vicious propensity’ has become a term of art.”…”Under this rule, a `vicious propensity’ is the propensity to do any act that might endanger the safety of the persons and property of others in a given situation, including behavior that is dangerous but not necessarily aggressive.”…”[W]hile knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice, a triable issue of fact as to whether the owner knew or should have known that its animal harbored vicious propensities may be raised by proof of something less.”…”In order to establish liability, there must be some evidence that the dog demonstrated vicious propensities prior to the incident.”[.]
“Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm.”…For nearly 100 years, it has been the rule in the Appellate Division, First Department that a finding that a dog possesses vicious propensities may be “proved by the nature of the attack and the ferocity with which it was kept up.”…”[A]n attack that is severe and unprovoked is [some] indicia of vicious propensities.”[.]
The Appellate Division, Third Department has held that a single instance of a dog growling at a person that the dog would later bite is not enough, standing alone, to show that the dog had vicious propensities…Moreover, it is error for a court to take judicial notice of the generally vicious nature of a dog’s breed as supporting evidence concerning the behavior of one specific dog…The Court of Appeals has “never held that particular breeds or kinds of domestic animals are dangerous, and therefore when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities.”…”[V]icious propensities may not be inferred solely from the fact that [a] dog was of the pit bull breed.”…Nevertheless, the Appellate Division, Third Department has held that “[t]he breed of the dog, although not sufficient to raise a question without further evidence, can be considered in the overall analysis.”[.]
“Even a dog which has not previously bitten or attacked may subject its owner or harborer [sic] to strict liability where its propensities are apparent.”[.]
Based upon the papers and the oral argument on the instant motion, the Court finds that Platt has failed to show prima facie entitlement to judgment as a matter of law as to Plaintiff’s second cause of action, sounding in strict liability. The evidence Platt submitted in support of her motion has raised triable issues of fact as to whether Taurus had vicious propensities and, if so, whether Platt had or should have had knowledge of those propensities prior to the October 4, 2014 incident[.]
Specifically, Platt submitted the Graham [deposition] in support of her motion. According to the transcript, after Taurus had been biting Lucas for a few minutes, Mr. Graham observed Platt come outside, heard Platt say, “Get off of him. Get off of him. Oh, no, not again.”, and then further observed Platt grab Taurus by the neck, whereupon Taurus released Lucas’s leg from his mouth’s grip.
This alleged statement by Platt is hearsay, “an out-of-court statement of a declarant offered in evidence to prove the truth of the matter asserted in the statement.”…”Hearsay is not admissible unless it falls within an exception to the hearsay rule as provided by case law or as required by the Federal Constitution or the New York State Constitution.”[.]
Two such exceptions apply to Platt’s statement from the Graham [deposition]: admission by party and excited utterance. “A statement of a party which is inconsistent with the party’s position in the proceeding is admissible against that party, if the statement is…made by a party in an individual capacity and offered against the party in that capacity[.]”…”A statement about a startling or exciting event made by a participant in, or a person who personally observed, the event is admissible provided the statement was made under the stress of nervous excitement resulting from the event and was not the product of studied reflection and possible fabrication.”[.]
Given the circumstances presented in this case, the Court finds that the statement claimed to have been made by Platt at or about the time of the attack meets the tests to be applied in determining the admissibility of either an admission by a party or an excited utterance. Further, the Court finds that the statement claimed to have been made by Platt, “Get off of him. Get off of him. Oh, no, not again.”, viewed in the light most favorable to Plaintiff, the non-moving party, raises a triable issue of fact as to whether Taurus had vicious propensities and whether Platt had knowledge of them prior to the October 4, 2014 incident.
Platt also submitted the Lucas [deposition] in support of her motion. According to the transcript, Lucas indicated that Wendy Murray was aware of Taurus having attacked two other people in the neighborhood and that Ms. Murray had witnessed one such attack. While Lucas’s statements regarding what Ms. Murray told him are hearsay that does not fall within an exception to the hearsay rule, “hearsay evidence is admissible to defeat a motion for summary judgment provided that it is not the only evidence.”…Here, the potential for eyewitness testimony at the time of trial from Ms. Murray, substantiating that Taurus previously attacked another person, in light of the statement, “Get off of him. Get off of him. Oh, no, not again.”, from the Graham [deposition], amplifies the issue of fact.
The Court finds further that the nature and severity of the attack on Lucas, including Taurus’s alleged aggression immediately beforehand—his barking, standing on hind legs, bearing his teeth, and straining against, pulling on, and eventually breaking his leash—and including the alleged strength and duration of his bite on Lucas’s leg, despite the substantial efforts of Mr. Graham and Ms. Abdus to get Taurus off Lucas, further serves to amply the issue of fact.