text:
Victor M. Metsch, Esq.
Smith, Gambrell & Russell, LLP
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"IT'S [LITIGATING] CATS AND DOGS"
Posted on June 1, 2018 | Comments Off on "IT'S [LITIGATING] CATS AND DOGS"
Litigation with respect to dogs and cats is an unending source of amazement. Several recent examples follow:
People v. Cherry (Frankie), 2017 NY slip Op 27284, App. Div. 2d Dept. (August 25, 2017)
City Court summarized the pleadings:
Defendant was charged, as follows, with violating Agriculture and Markets Law § 353:
The deponent states that, at the above time and place, deponent observed two pit bulls in the backyard of defendant's residence, that deponent observed said dogs to have sores on the pelvic area, extremely emaciated, prominent ribs, spine, pelvic bones, exaggerated hour glass torsos, and food and water bowls to be empty and rusted.
Deponent is further informed by defendant's own statement that defendant was taking care for said dogs for about one month and that defendant fed said dogs twice a day.
Deponent is further informed by, Dr. Robert Reisman, Medical Coordinator of Animal Cruelty cases at Bergh memorial Animal Hospital, that informant observed and treated the above-mentioned dogs for malnutrition and starvation.
Defendant pleaded guilty to the charged offense, and the court imposed a sentence of a conditional discharge.
The pending appeal:
[D]efendant contends that Agriculture and Markets Law § 353 is unconstitutionally vague as applied to him in that the statute fails to define a point where his responsibility attaches.
Agriculture and Markets Law § 353 provides in relevant part:
A person who … deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be … deprived of necessary food or drink, or who willfully…in any way furthers any act of cruelty to any animal…is guilty of a misdemeanor.
The legal template:
In addressing whether a statute is unconstitutionally vague as applied, courts have developed a two-part test…The first part of the test is for the court to "determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute"…"The rationale underlying the requirement that a penal statute provide adequate notice is the notion that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed"…The second part of the test requires that a "court determine whether the enactment provides officials with clear standards for enforcement"…so that its enforcement is not arbitrary or discriminatory. "The Legislature must include in a penal statute minimal guidelines to govern law enforcement. The absence of objective standards to guide those enforcing the laws permits the police to make arrests based upon their own personal, subjective idea of right and wrong"[.]
The burden of proof:
The burden of demonstrating that a statute is unconstitutional rests with the one seeking to invalidate it…"A challenge to a statu[t]e as applied requires the court to consider whether the statute can be constitutionally applied to the party challenging it under the facts of the case"…A court "will not consider the possibility that the statute may be vague as applied in other hypothetical situations"[.]
Concluding, with two judges dissenting, that:
We reject defendant's argument that the statute fails to define a point where his responsibility attaches. Agriculture and Markets Law § 353 forbids, among other things, a person from "depriv[ing]" any animal "of necessary sustenance, food or drink." We find that, by using this language, the statute gives fair notice that this proscription applies to anyone, such as a caregiver, who is in a position to, and has the ability to, "deprive[]" an animal of such sustenance. Thus, the statute was sufficiently definite to give defendant in this case fair notice that this proscription applied to him, as he admitted that the dogs in question had been under his care for about a month. Regarding the second prong of the test, "[t]he combination of the precise terms described in the statute and the clearly pronounced elements adequately defines the criminal conduct for the police officers, Judges and juries who will enforce the statute"…Consequently, the statute is not vague as applied to defendant.
Olsen v. Campbell, 2017 NY Slip Op 03828, App. Div. 3d Dept. (May 11, 2017)
The Appellate Division summarized the facts and prior proceedings:
In April 2014, plaintiff's three-year-old daughter was bitten on the face by defendant's dog, a 12-year-old Siberian husky. The attack took place while the child was visiting her grandmother, defendant's girlfriend, at defendant's premises. Plaintiff commenced this action to recover damages for the child's injuries. Defendant answered and thereafter moved for summary judgment dismissing the complaint. Supreme Court granted defendant's motion finding that defendant met his burden of proving that he had no prior knowledge of the dog's vicious propensities and plaintiff failed to raise a triable issue of fact[.]
The legal template in a "dog bite" case:
In the context of a defendant's motion for summary judgment in a dog bite or attack case, the "defendant bears an initial burden to demonstrate that, prior to the incident giving rise to the lawsuit, he or she was without knowledge that the animal possessed any vicious or dangerous propensities"…Only if the defendant meets this initial burden, does the burden then shift to the plaintiff "to raise a triable question of fact as to whether defendant knew or should have known that [his or her] dog had…vicious propensities"…"Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities"…"In this procedural setting, all evidence must be viewed in the light most favorable to [the] plaintiff"[.]
The deposition testimony:
On his motion, along with his deposition testimony, defendant submitted the deposition testimony of his girlfriend and that of plaintiff. However, rather than showing that he was entitled to summary judgment, the deposition testimony showed just the opposite. Defendant testified that the dog was chained outside in order to alert him to the presence of people in his yard and to protect business assets on his property. He testified that the dog is "there to bark" and that barking and running to the full extent of its chain when people enter the property is the dog's "job." Defendant described an incident three to five years prior to the instant bite in which the dog grabbed a customer's pant leg, though defendant claimed that the dog did not break any skin. We note that, even if the dog had not broken the person's skin, such aggressive behavior may reflect a proclivity to act in such a way that puts others at risk of harm and can be found to be evidence of a vicious propensity[.]
Notably, the following exchange took place during defendant's deposition:
"Q. And you have her on a chain, she'll run to the end of the chain as far as she can go, but the chain holds her back from being able to go any further?
"A. Correct.
And to prevent her from biting the people that come on the property?
"A. Correct. Correct. She has actually gotten off the chain when people were there and she hasn't bit [sic] them."
Later in his testimony, he explained an incident in which the dog broke its chain and circled a person:
"Q. And on that occasion when she got loose from the chain and went toward the person, were you at least initially nervous that she was going to bite [that person]?
"A. I didn't know. Obviously, I wondered, you know, but I didn't suspect so."
Further, both defendant and his girlfriend in their deposition testimony expressed concern about children going near the dog, in part because of the danger to children being tripped up by the dog's chain. Defendant's girlfriend was also unsure whether the dog would bite or react poorly if the children were to pet the dog, or grab the dog's hair the wrong way, and testified that the dog was very temperamental.
Concluding that:
"Knowledge of vicious propensities may … be established by proof of prior acts of a similar kind of which the [defendant] had notice … even in the absence of proof that the dog had actually bitten someone — by evidence that it had been known to growl, snap or bare its teeth"…The evidence submitted by defendant shows that he kept a guard dog on a chain so that it could not bite people, it had previously broken its chain to get to, and then circle, a person who came on defendant's property, it had grabbed hold of another person's pant leg and children had been warned to stay away from the dog. All these factors reflect a proclivity for the dog to act in a way that puts others at risk of harm and that defendant knew, or should have known, of the dog's vicious propensity…As such, we find that defendant failed to meet his burden of demonstrating that he was entitled to summary judgment such that the burden never shifted to plaintiff. Therefore, Supreme Court erred in granting his motion.
Lentini v. Delta Air Lines, Inc., 2018 NY Slip Op 01597, App. Term, 2d Dept. (March 14, 2018)
The Appellate Division described the action and the prior proceedings:
As alleged in the complaint, the plaintiff purchased a kitten from a breeder in Florida. The breeder delivered the kitten to the defendant, Delta Air Lines, Inc., to be shipped from Florida to New York as cargo with the defendant's cargo service. The plaintiff picked up the kitten upon arrival in New York and took it home. The following day, after the plaintiff noted that the kitten was in distress, a veterinarian diagnosed the kitten with a broken hip.
The plaintiff commenced this action to recover damages arising from the defendant's shipment of the kitten, alleging causes of action sounding in, inter alia, negligence, conversion, and bailment. After issue was joined, the defendant moved for summary judgment limiting the plaintiff's potential damages to $50 pursuant to the terms contained in its U.S.-Domestic Air Waybill Conditions of Contract…The Supreme Court denied the defendant's motion[.]
The applicable law:
With the enactment of the Airline Deregulation Act of 1978…domestic air transit was largely deregulated…Prior to and after the enactment of the ADA, actions against interstate carriers for lost or damaged shipments have been governed by federal common law…The ADA contains a "preemption clause"…as well as a "saving clause"…which, when read together, prohibit states from "imposing their own substantive standards with respect to rates, routes, or services"…"This distinction between what the State dictates and what the airline itself undertakes confines courts, in breach-of-contract actions, to the parties' bargain, with no enlargement or enhancement based on state laws or policies external to the agreement"…Thus, actions for loss or damage to interstate air shipments are governed by federal common law[.]
An air waybill forms the basic contract between a shipper and an air carrier…In order to enforce a limited liability provision contained in an air waybill, a carrier must demonstrate that its contract satisfies the released-valuation doctrine…Under the released-valuation doctrine, the shipper "is deemed to have released the carrier from liability beyond a stated amount" in exchange for a low shipping rate…The shipper is bound by the limited liability provision if he or she (1) has reasonable notice of the rate structure, and (2) is given a fair opportunity to pay a higher rate in order to obtain greater protection…Stated a different way, "[l]imited liability provisions are prima facie valid if the face of the contract (or, in this case, air waybill) recites the liability limitation and the means to avoid it'"…The fact that the language setting forth the limited liability provision is found on the reverse side of the air waybill does not render the provision unable to satisfy the released-valuation doctrine…" The issue of adequate notice of the terms and conditions contained in a passenger ticket for interstate transportation is a question of law to be determined by the Court"[.]
And applied the facts to the law:
Here, the air waybill signed by the plaintiff's shipper demonstrates that the shipper did not declare a value for the kitten and no additional coverage was purchased. The terms of the air waybill also provided a fair opportunity to purchase greater coverage…Accordingly, the defendant met its initial prima facie burden on its motion.
The burden then shifted to the plaintiff to show a proper basis for avoiding enforcement of the limited liability provision…To do so, the plaintiff had the burden of showing that she did not have a fair opportunity to purchase greater liability protection…The plaintiff, who submitted only her attorney's affirmation and certain veterinary bills in opposition, failed to raise a triable issue of fact as to whether she was not given the opportunity to purchase additional coverage.
Furthermore, the plaintiff's efforts to invalidate the contractual limitation of liability clause based upon the state common law of tort, conversion, and bailment are without merit. To reach those claims would require consideration of, and give effect to, "state laws or policies external to the agreement"[.]
Dumain v. McDonald, 2018 NY Slip Op 50087(U), App. Term, 2d Dept. (January 18, 2018)
The Court summarized the action and prior proceedings:
In this action to recover for defendant's alleged breach of a written contract in which defendant had agreed to breed her mare during the 2013 breeding season, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered October 2, 2015, the City Court granted plaintiff's motion and denied defendant's cross motion, finding that defendant had breached the contract by failing to timely notify plaintiff that her mare was unfit to be bred during the 2013 breeding season.
In February 2013, the parties executed a contract in which defendant agreed to breed her mare, Mountain Breez, with plaintiff's stallion, Explosive Matter, during the 2013 breeding season, and to pay plaintiff a $5,000 stud fee if the breeding resulted in a live birth. The contract also provided (1) that defendant was to make her mare available for breeding through July 1, 2013 (the parties appear to agree that this date was changed to July 6, 2013 even though the parties did not amend the written contract accordingly); (2) that if the mare was not made available for breeding, defendant had to pay plaintiff 100% of the $5,000 stud fee unless the mare or stallion died or became unfit to be bred, or unless the mare was excused, in writing, by plaintiff, in which case the contract was null and void; and (3) that if the mare was claimed to be unfit to be bred, that determination had to be supported by a "veterinarian certificate," and defendant was required to "immediately notify" plaintiff, in writing, that the mare was unfit.
Plaintiff alleged in his supporting affidavit that he had commenced this action because defendant had not paid him the $5,000 contract fee which was due him as defendant failed to make her mare available for breeding during the 2013 breeding season and failed to inform him, during the season, that the mare was unfit to be bred.
A review of the record indicates that the City Court properly determined that the contract terms were clear and unambiguous, and that plaintiff had established his prima facie entitlement to summary judgment…The burden then shifted to defendant to establish the existence of a triable issue of fact[.]
In opposition to plaintiff's motion and in support of her cross motion, defendant appears to be arguing that her mare was unfit to be bred and that, under the contract, notification that the mare was unfit to be bred did not have to be provided during the 2013 breeding season, but could be provided thereafter, which is what she did. This is a narrow and constrained interpretation of the contract terms. Giving practical interpretation to the contract language and the parties' reasonable expectations…it is clear that defendant had to "immediately notify" defendant, during the 2013 breeding season, in writing, that the mare was unfit to be bred, which defendant, admittedly, failed to do. Consequently, defendant failed to raise a triable issue of fact to rebut plaintiff's prima facie case and, thus, pursuant to the contract, plaintiff was entitled to recover 100% of the stud fee.
Sauerhaft v. Mathe, 2017 NY Slip Op 51603(U), App. Term, 2d Dept. (November 16, 2017)
The Appellate Term summarized the proceedings:
Richard Sauerhaft filed a petition seeking to declare Dori Mathe's dog, Watson, a dangerous dog. Mathe filed a separate petition seeking to declare Sauerhaft's dog, Springstein, a dangerous dog.
The "dangerous dog hearing":
At a joint dangerous dog hearing held…the evidence showed that, on July 2, 2015, Richard Sauerhaft and his dog, Springstein, arrived at a local dog park, where Dori Mathe and her dog, Watson, were playing. Neither dog was leashed. Sauerhaft testified that he was facing Springstein, who was four feet away from him, when he saw a "blur" pass in front of him and then observed Watson, who had been about 20 to 40 feet away, sink his teeth into Springstein's neck. When Mathe stepped in to separate her dog from Springstein, she sustained a bite to her arm. Mathe and her witness offered testimony contradicting Sauerhaft's testimony concerning the incident, asserting that Springstein had attacked Watson. Following the hearing, the Justice Court, finding that there was no proof of justification for Watson's attack upon Springstein, granted Sauerhaft's petition and declared Watson to be a dangerous dog…and implicitly denied Mathe's petition to declare Springstein a dangerous dog.
Reversing and concluding that:
In the proceeding brought by Sauerhaft, the court's order declaring Watson to be a dangerous dog impermissibly shifted the burden of proof to Mathe since it was Sauerhaft's burden, as petitioner, to establish that the attack on his dog was without justification…Consequently, so much of the order as declared Watson a dangerous dog must be vacated and a new hearing held.
As to the proceeding commenced by Mathe against Sauerhaft, we find, giving appropriate regard to the credibility determinations of the Justice Court…that Mathe had not established by clear and convincing evidence that Springstein was a dangerous dog.
Hayes v. Mia's Bathhouse for Pets, 2017 NY Slip Op 27339, App. Term 1st Dept. (October 16, 2017)
Small Claims Part of Civil Court awarded plaintiff damages of $3,500 in this dog bite case.
Appellate Term as follows, summarily affirmed:
The evidence permits a finding that, plaintiff-dog groomer may have assumed the risk of being bitten by a dog while performing her services, she did not assume the concealed or unreasonably increased risk of defendants-store owners' negligent failure to screen for proper immunization paperwork prior to offering plaintiff a dog for grooming, in violation of defendants' express promise to plaintiff…After being bitten by a dog, plaintiff was properly awarded damages for the associated treatment of a documented infection caused by defendants' own negligence in providing a dog to her that was not screened and did not receive proper immunizations, and for pain and suffering incurred because of the medical treatment.
Silverleaf LP v. Matthew, 2018 NY Slip Op 50065(U), Civ. Ct. Bronx Co. (January 19, 2018)
Civil Court described the background:
The This is a holdover proceeding based upon Respondent's alleged harboring of a dog in her Rent Stabilized apartment in violation of paragraph 22-f of her lease and paragraph 8(a) of a Rider to her lease. Respondent raised in her Answer, inter alia, an affirmative defense of "pet waiver", based on the assertions that: She has continuously kept pet dogs for several years; she has harbored them open and notoriously; Petitioner was aware or should have been aware of them; and Petitioner waived its right to seek a possessory judgment for breach of the lease by failing to take legal action within three months of the date it became aware of Respondent's dogs, as required by New York City [Pet Law].
The "pet waiver" defense:
Respondent now moves for summary judgment on her "pet waiver" defense, and supports her motion with her attorney's affirmation, her own affidavit, the affidavit of a neighbor in the same building, Mineva Santana, and certain documents and photographs. Respondent asserts that she has lived in her apartment for eleven years and that she "took on" two Yorkshire Terrier puppies "about four years ago." She describes them as "tiny" and capable of being picked up with one arm. She asserts that she walks them regularly, more than once a day. To do so, she takes the dogs "in the hallway, elevator, and through the front door of the building" and then walks them in front of the building where she lives. She does not hide the dogs from visitors, and their food and water bowls are in her living room. Ms. Santana, who, in addition to being a neighbor, knows Respondent through their families as they "have a grandchild in common," asserts that she has lived in the building since 2004 and known Respondent since 2004 or 2005. She has observed Respondent with her dogs in the building and in her apartment for the past three or four years, ever since they were puppies. She sees Respondent walking her dogs in the lobby of the building as well as outside the building and asserts that Respondent walks her dogs about twice per day. Two photographs of the dogs and a one-page vaccination certificate that appears to be dated 3/7/15, are referenced in Respondent's attorney's affirmation, and attached as [exhibits] to the motion papers. The vaccination certificate includes Respondent's name and address and references a female pet with the name "Minnie Roxie" and breed "Yorkie/Maltese".
Respondent's contentions:
Respondent's attorney argues that Respondent is entitled to summary judgment as she "held out the pets openly and notoriously for the last four years and Petitioner's agents acquiesced to the presence of her dogs." Respondent's attorney cites to decisions in three pet holdover cases…and argues that Petitioner waived its right to enforce the pet prohibition clause of the lease by failing to comply with [the NYC Administrative Code].
Petitioner's response:
In opposition, Petitioner submits solely the affirmation of its attorney, who argues that the motion for summary judgment should be denied as there are material issues of fact to be resolved at trial. Petitioner…argues that Respondent has failed to state sufficient facts to show that Petitioner had actual or constructive notice of her dogs: Respondent does not state the names of any particular agent or employee who knew about the dogs or any particular instances or dates when any such individuals saw them. Attached to Petitioner's attorney's affirmation…is a copy of a lease which Petitioner's attorney describes as being a copy of "Respondent's Original Lease". This lease is for a one year term beginning April 1, 2016 and includes a "no pet" provision at paragraph 22(f). Also attached as…is a Rider dated April 1, 2015, paragraph 8(a)(iii) of which also prohibits pets, with certain exceptions.
The issue before the Court:
The issue presented by Respondent's motion for summary judgment is whether there is a material issue of fact with regard to her defense under the New York City Pet Law…which mandates a waiver of any "no pets" clause in a lease where a tenant is "openly and notoriously" harboring a household pet with the knowledge of the landlord unless the landlord moves to enforce the lease provision promptly — that is, by commencing an eviction proceeding within three months of learning of the pet's presence in the apartment. The background and purpose of the NYC Pet Law were described by the Appellate Division, First Department in Seward Park Hous Corp v. Cohen…as follows:
In 1983, the New York City Council, responding to widespread abuses by landlords who sought to evict tenants who harbored pets for an extended period of time, despite no-pet lease clauses, and without prior complaints by the landlord, enacted an ordinance…Its purpose…in sum, is twofold: (1) to protect pet owners from retaliatory eviction; and (2) to safeguard the health, safety and welfare of tenants who harbor pets. The ordinance sought to balance the rights of a landlord who acted promptly to evict a tenant upon learning the tenant harbored the pet, against the rights of a tenant who harbored such pet with the knowledge of the landlord, for an extended period of time (three months), without action being initiated by the landlord.
The court in Seward Park Hous Corp upheld the lower court's dismissal, after trial, of a holdover proceeding brought based upon the tenant's harboring of a dog in violation of a lease provision, held that it was appropriate for the court "to impute the actual knowledge of the landlord's servants and employees at the building to the non-resident managing agent", and noted that "The question of imputation of knowledge is a question of fact which must be resolved in light of all the circumstances of the case."[.]
Here, Respondent's motion for summary judgment must be denied as the evidence she has submitted falls short of what is required to meet her initial burden of proving the elements of a Pet Law defense. She has made no showing that the landlord had knowledge or should have known of her dogs through the observations of its agents more than three months prior to the commencement of this proceeding. The facts proffered by Respondent are scant in scope and include no specifics as to dates and events. Respondent makes no allegations that any of Petitioner's employees or agents were in her apartment to conduct inspections or make repairs or for any other reason during the past four years or that she encountered anyone with any agency relationship to Petitioner elsewhere in or around the building while walking her dogs. As to corroborating evidence, Respondent does not provide any ownership or other related documentation to support her claim that she "took on two Yorkshire Terrier puppies" four years ago. The only animal-related documentation included in the motion papers is the vaccination certificate…which includes Respondent's name and address and references a "Yorkie/Maltese" named "Minnie Roxie"; however, Respondent does not mention this document in her affidavit, and since she also does not mention the names of either of her two Yorkshire Terriers it is not even clear whether "Minnie Roxie" is one of them. Respondent's affidavit also does not refer to the photographs…much less provide any details as to when or where they were taken.
As Respondent did not meet her initial burden of making a prima facie showing on all elements of her Pet Law defense…the burden does not shift to Petitioner to make any showing at this juncture[.]
Viotto v. O'Brien, NY Slip Op 30033(U) Sup. Ct. N.Y. Co. (January 9, 2018)
Supreme Court summarized the allegations and the pending motion:
In the instant action, Plaintiff alleges that she was bitten in the abdomen by a dog owned by Defendant O'Brien…while she was working in Defendant Vino Maestro, Ltd.'s wine and liquor store…Defendant Wine Store moves for summary judgment arguing that it did not know that Defendant O'Brien's dog had such alleged vicious propensities, and therefore it cannot be held liable. Defendant Wine Store further moves for summary judgment, arguing that Plaintiff has improperly alleged claims of negligence against it—rather than a claim for liability under the "one free bite" rule[.]
The complaint:
In Plaintiff's complaint, Plaintiff alleges that, on September 21, 2015 at approximately 9:50 P.M., she was "attacked and bitten by a dog named `Emma' thereby sustaining severe injuries…due to the negligence of the defendants herein."…Plaintiff further alleges that,
The negligence, recklessness and carelessness of the defendant(s) consisted of among other things, negligently, recklessly and carelessly managing, maintaining and controlling the dog; in causing and allowing ferocious dog(s) to be without restraint upon the aforesaid premises without being properly guarded, restrained, muzzled or confined; and otherwise being negligent and careless on the premises.
In addition, Plaintiff alleges that:
That at all times herein mentioned, defendant VINO MAESTRO LTD. knew or should have known and/or allowed the defendant JAMES O'BRIEN, their customer, who owned and maintained a dog well known to be vicious with a ferocious nature, propensity and disposition in and upon the premises. Said dog was accustomed to attacking people and/or biting and/or displaying ferocious propensities to them and the defendant well knew that said dog had on occasions prior thereto bitten various individuals.
Plaintiff states that at the time of the accident, she had been working at the Defendant Wine Store since June 2015 as an independent contractor, providing marketing services and working in the front of the store in the "retail environment."…Plaintiff states that Defendant Wine Store had an unwritten policy of allowing customers to bring their pets into the store, and the store kept treats for the dogs behind the counter[.]
Plaintiff states that on the night of the accident Defendant O'Brien entered the store, as she and her coworkers were closing up, with his dog and a female companion…Plaintiff states that on that night she did not recognize Defendant O'Brien as someone she had seen at the store before, but that she recognized his female companion as a regular customer at the store[.]
Plaintiff states that she asked Defendant O'Brien, "Can the dog have a treat?" and that Defendant O'Brien responded, "Absolutely."…Plaintiff states that she had the treat in her hand and was proceeding to give the treat to the dog, when Defendant O'Brien stated, "Be careful, she can be aggressive."…Plaintiff states that right at that moment, the dog lunged forward and bit her on the left side of her abdomen…Plaintiff states that she does not recall if Defendant O'Brien said anything further because she "immediately went into where the stock area was to see what had occurred."[.]
Plaintiff states that following the incident, she had a few conversations with the store manager Afrim Marsic concerning the incident…Plaintiff states that these conversations took place in person and via telephone; and that the first conversation occurred the day after the incident and probably by Plaintiff texting Mr. Marsic because Mr. Marsic was traveling at the time…Plaintiff further states that she had another conversation with Mr. Marsic in person at the store a few days after the incident, but before she went to the hospital, where Mr. Marsic told her that Mr. O'Brien had told him "the exact same thing he said to me, about the dog being aggressive."[.]
The submissions:
With regard to this alleged conversation between Plaintiff and Mr. Marsic, Defendant submits an affidavit from Mr. Marsic wherein Mr. Marsic states that he was out of the country from September 21, 2015 to September 27, 2015. Mr. Marsic further states that he does now know Defendant O'Brien, and "I never told or communicated to Regina Viotto that James O'Brien told me that his dog was aggressive."…Mr. Marsic further states that "I did not meet or speak with Regina Viotto after she was allegedly bitten by a dog in September of 2015 and before she went to the hospital that month."…In addition, Defendant Wine Store submits a document that it describes as "copies of [Mr. Marsic's] trip itinerary and flights showing he was in Macedonia when Viotto claims she spoke with him in person."[.]
In addition, Defendant Wine Store presents another document which it describes as Plaintiff's "redacted medical records" which purport to show that Plaintiff arrived at the hospital on September 25, 2015 and was discharged on September 26, 2017[.]
The "one free bite" rule:
Defendant Wine Store argues that the instant complaint only pleads a claim of negligence against them and that said complaint does not plead a cause of action for liability under this state's "one free bite" rule… This rule holds 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."…This rule has also been extended to property owners who allow pets onto their premises with actual or constructive knowledge of the pet's vicious propensities[.]
Under this rule, "[o]nce such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities."…Negligence, however, is not a basis for imposing liability for dog bites[.]
Reading the complaint in the light most favorable to Plaintiff, this Court finds that Plaintiff pleads a cause of action for liability under the "one free bite" rule, and the Court finds that the complaint does not plead a cause of action sounding in negligence…As such, this Court declines Defendant Wine Store's invitation to grant it summary judgment on a finding that Plaintiff failed to properly plead liability under the "one free bite" rule.
This Court further finds that there are issues of fact concerning Defendant's potential knowledge of the subject dog's alleged vicious propensities, which preclude dismissal of Plaintiff's claims pursuant to the "one free bite" rule. Although Defendant Wine Store argues that it had no knowledge of the subject dog's alleged vicious propensities, Plaintiff has testified that, a few days after she was bitten, she spoke at the store and in person to Afrim Marsic, the manager of the store, who told Plaintiff that he knew Defendant O'Brien and his dog and that Defendant O'Brien had told him that "the dog could be aggressive."[.]
Defendant Wine Store attacks the credibility of this testimony by Plaintiff, arguing that the alleged conversation never took place and could not have taken place because Mr. Marsic was in Macedonia at the time of the accident and for a week thereafter, "so he did not and could not have spoken with Viotto in person before she went to the hospital."[.]
In essence, Defendant Wine Store asks this Court to take Mr. Marsic's testimony along with the printout of Mr. Marsic's flight itinerary and to conclude that Plaintiff is lying (or at least incorrect) about having a conversation with Mr. Marsic, wherein Mr. Marsic told Plaintiff that Defendant O'Brien told him that his dog could be aggressive. Such a credibility determination is inappropriate for summary judgment, and the Court accordingly declines to make one…["[I]ssues as to witness credibility are not appropriately resolved on a motion for summary judgment."].)
Hazin v. Bayer, 2017 NY Slip Op 51618(U), Sup. Ct. Q. Co. (November 15, 2017)
Supreme Court, entertaining a motion to dismiss, summarized the lawsuit:
This is an action to recover damages for personal injuries allegedly sustained by plaintiff when he was bit by defendants' dog on August 22, 2015 on the sidewalk adjacent to the premises of 33-31 91st Street, in Queens County, New York.
Plaintiff…testified that he was involved in the subject dog bite incident when he was walking on a street between Francis Lewis Boulevard and 191st Street. He was leaving his sister's store on Francis Lewis Boulevard and was headed to the bus stop to go back home. The dog was on the sidewalk. The dog was a dark-colored small dog. He is five foot five inches tall. The dog was shorter than his knee. He had seen the dog prior to the subject incident. He would usually walk from the bus stop to his sister's store and see the dog. He would see the dog on the other side of the street accompanied by children. He saw the dog with a twelve to fourteen year old boy a couple of times. On the day of the incident, prior to being bitten, he did not see the dog. He saw a woman who was walking behind him. The woman was walking in the same direction as him. At the time of the incident, the dog was leashed. He did not initially notice the woman holding the leash. He heard some noises. He turned around. He felt pain in his right calf and noticed that the right leg of his pants was ripped. The dog bit him on his right calf. There was a scratch on his left calf. Afterwards, he observed the woman trying to hold onto the dog. Prior to the date of the incident, he told his sister that the dog is kind of in attack mode all the time when he is passing by. He did not make any complaint to the owner of the dog regarding the dog. He did not discuss the dog with anyone on the block or with the kids that he would see playing with the dog.
Defendant Mark Bayer…testified that at the time of the subject incident, he owned one dog named Chloe. Chloe is a Toy Poodle-Havanese mix. At the time of the incident, Chloe was approximately three years old. Chloe is approximately seven inches tall and weighs between nine and eleven pounds. Chloe would go out for walks three times per day. On average, he would walk the dog two times per day. Chloe's leash was about five feet long. His wife, Jennifer Bayer, and their three children would also walk the dog. On rare occasions, his mother-in-law and his parents would walk the dog. His mother-in-law had walked Chloe three times over three to four years. His parents walked Chloe once or twice in the last four years. When he walks Chloe, she never attempts to run or shake free of her leash. He was informed of the subject incident after his mother-in-law called his wife on the telephone. He was not aware of any contact between plaintiff and Chloe prior to the incident. Chloe had never been involved in any incidents with other dogs. No family, friends or neighbors ever reported that Chloe was engaging in an aggressive manner. His sons never told him of anyone telling them about Chloe engaging in an aggressive manner. His parents and mother-in-law never told him that Chloe had engaged in an aggressive manner. He did not receive any summonses or tickets regarding Chloe or the subject incident.
Defendant Jennifer Bayer [testified] that in August 2015, she owned one dog named Chloe. Chloe is approximately eight inches tall and weighed approximately nine pounds at the time of the incident. She was never informed by anyone at Petco of aggressive behavior on the part of her dog prior to the subject incident. She would usually walk Chloe once per day. Her husband and children would also walk Chloe. Her mother and in-laws would walk Chloe occasionally. When Chloe is walked, she has a leash on. Chloe always walks beside her and does not walk in front of her. She was advised of the subject incident when her mother informed her over the telephone. She did not receive any tickets or summonses as a result of the subject incident. Prior to the subject incident, neither her mom nor any of her children ever reported any incidents of aggressive behavior on Chloe's part.
Defendants' contentions:
[D]efendants' counsel contends that defendants are entitled to summary judgment as they were not aware that their dog had any vicious propensities. The dog never inflicted injuries or displayed any tendencies which could be characterized as being vicious. Additionally, there is no evidence of any conduct on the part of the dog which would have placed defendants on notice of the possibility of any incident.
Plaintiff's response:
[P]laintiff… affirms, inter alia, that he personally witnessed the aggressive nature of the dog on approximately twenty separate occasions in the one year period immediately prior to the subject incident. On each of those occasions the dog was not alone, but was accompanied by people who he believes to be members of defendants' family. He further affirms that whenever the dog would see him, the dog would lunge toward him on its leash, often attempting to drag whoever was holding on to it to the opposite side of the street. Additionally, while the dog was attempting to get to him, the dog would bark, growl and bare its teeth at him. On at least one occasion prior to the subject incident, he mentioned to a teenage boy holding the dog's leash to please hold onto the dog tightly.
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…" Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm"[.]
Here, defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they were not aware that their dog had ever bitten anyone or exhibited any aggressive behavior prior to the subject incident[.]
However, viewing the evidence in the light most favorable to the non-moving party, plaintiff's opposition raises a triable issues of fact that preclude summary judgment. Plaintiff testified that he witnessed the dog displaying aggressive behavior on prior occasions, including lunging and attempting to drag whoever was holding on to the leash. Additionally, on those prior occasions, plaintiff witnessed the dog with people who he believes to be members of the defendants' family. Thus, issues of fact remain, including, inter alia, whether the dog displayed vicious propensities and whether the defendants knew or should have known of the dog's vicious propensities. Moreover, a court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned"[.]
Medina v. Romanofsky, 2017 NY Slip Op 51320(U), Civ. Ct. Richmond Co. (September 28, 2017)
Civil Court whimsically stated:
"Who let the dogs out? Who, who, who, who?"
If the person making this inquiry is seeking to impose liability for letting the dogs out it will depend on if the "doggie" is the cute one with the "waggly tail" that so enamored Patti Page, or if it is a "doggie" in a herd under the watchful eye of a lonesome cowpoke being urged to "git along" by everyone from Woody Guthrie to Roy Rogers. According to the Court of Appeals, in the former situation there is no liability in a city with a "leash law" but there may be fault in the latter.
Summarized the facts:
Claimant, Laura Medina, commenced this small claims action against the defendant, Peter Romanofsky, alleging that owing to the failure of the defendant to control his dog, claimant's dog was injured. A trial was held on July 6, 2017. Both parties appeared without counsel.
Claimant testified that she was walking her dog, a male Goldendoodle, on March 27, 2017, on a leash along a public sidewalk in front of defendant's home on Ocean Avenue, Staten Island, New York. She stated that defendant's German shepherd, which was unleashed, left defendant's yard and attacked her dog. Claimant's dog required treatment from a veterinarian for his wounds.
Defendant admitted his dog was unleashed. Defendant's initial defense was that the claimant should not be walking her dog in front of his house, claiming some proprietary interest in the sidewalk. He changed the story to that his dog was in heat and claimant failed to contain her dog permitting it to enter his property and mount his dog. Defendant then altered the story to that the he was taking the dog from his car to the house on a leash when the incident occurred. A photograph of the area does not show complete fencing in front of defendant's house making the yard accessible from the street.
The New York City "leash law":
New York City is a municipality that has a "leash law" that [provides for] dogs to be restrained.
(A) person who, owns, possesses or controls a dog shall not permit it to be in any public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than six feet long.
Preliminarily concluding:
On its face, the defendant is in violation of this regulation in that his property was not completely fenced and he failed to effectively restrain his dog. Whether the court believes the defendant that his dog was on a leash, it is uncontroverted that the defendant was not in control of the leash which permitted the incident to occur whether it was on the public sidewalk or on a portion of his property adjacent to the public sidewalk.
But as noted in Kander & Ebb's musical "Chicago" regarding the character "Mary Sunshine," "things often aren't as they appear to be." In fact, the Court of Appeals has recently ruled that "leash laws" do not create a private negligence right of action. Once again proving that Momma Rose was correct when in "Gypsy" she responded to Miss Cratchitt's observation that "New York is the center of everything.," with "New York is the center of New York."
Summarized the applicable law:
The Court of Appeals…rejected any common-law negligence claim existing for violation of the leash law making New York one of the few states to take that position. Most states follow the Restatement (Second) of Torts §518 which requires a dog owner to supervise and control the pet.
New York continues to permit recovery only if the plaintiff establishes the vicious propensities of the domestic animal. Once the vicious propensities are established recovery is permitted on a theory of strict liability…Not all claims require the proving of vicious propensities. There is a viable negligence claim if your farm animal is unleashed, wanders off, and causes injury; even in New York City…So, in New York City, if Ferdinand the Bull, leaves the cork tree he was sitting under, knocks over a flower delivery-person in the bicycle lane, a negligence action would lie. But if Rusty B Company yells "Yo Rinny" and the flower deliverer is knocked down by the dog, litigation will only be entertained if Rin Tin Tin has vicious propensities.
The first department found itself constrained to follow these precedents from the Court of Appeals, but noted: "We find this to be most unsatisfactory as a matter of public policy and recognize a cause of action for negligence in appropriate circumstances"…Considering New York has been in the forefront in giving individuals the right to seek redress in court for an alleged wrong, many arising from the creative mind of local lawyers, the position of the Court of Appeals is puzzling and troubling. It leaves persons injured by the failure of a dog owner to follow the local law remediless. In view of the fact that we entertain suits by students injured in school playgrounds on the ground of lack of supervision where the liability is nonexistent or by spectators hit by foul balls, it is hard to conceive why the Court of Appeals is restricting access to the courts.
Inquiring that:
Why do we deny a person suffering an injury from an unleashed dog his or her day in court when if treated like similar situations, the trier of fact would determine whether the incident was caused by "dogs just being dogs" or the failure of the owner to supervise his or her pet? It would seem that the proper procedure would be to permit the negligence claim to be filed and require the injured party to prove a prima facie case of lack of control.
Perhaps the majority on the Court of Appeals had just watched the DVDs of the Complete Lassie Collection and did not want to hold the owner of any dog liable, especially potentially one like Lassie who pulled Timmy out of so many scrapes; or maybe they were so traumatized by the death of Old Yeller they couldn't even think of punishing a dog or its owner; or so impressed by the good Balto did, and he was half-wolf, to impose fault on an owner.
Taking issue with the New York Court of Appeals:
Analysis of the entire…[NYCAC] and the RCNY supports the conclusion that the Court of Appeals is not correct. For instance, 24 RCNY §161.02 defines a "dangerous dog" as:
a dog which menaces, threaten, attacks or bites a person or persons, or which kills or inflicts physical injury upon any persons, which such persons are peacefully conducting themselves in any place where they may lawfully be,
The New York State Agriculture and Markets Law…has a more expansive definition of a "dangerous dog." It provides:
Dangerous dog means any dog which (i) without justification attacks a person, companion animal…farm animals…or domestic animal… and cause physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat or serious physical injury or death to one or more persons, companion animals, farm animals or domestic animals.
Under [the AML] dogs, cats and similar household pets are not domestic animals. They are a "companion animal"…A "companion animal" or "pet" is a dog or cat or any other domesticated animal normally maintained at or near a household.
The fact that defendant's dog bit claimant's dog while she was walking it and did not bite claimant does not mean that defendant's dog was not a "dangerous dog" under the NYCAC or AML. Neither statute uses the term "vicious propensities" or quantifies the number of prior incidents needed to label the canine a "dangerous dog" so that the dog's actions constitute a violation. It must be concluded that the purpose of the statute was to define a situation where a dog owner would have liability based on the dog's actions and not necessarily on having a "rap sheet" of prior incidents. There is no requirement that there be a prior finding that the dog was a "dangerous dog" to impose liability on the owner under the AML[.]
Once there is a finding of a "dangerous dog," liability for medical costs is strictly imposed irrespective of whether the dog had vicious propensities. [The AML] provides:
The owner or lawful custodian of a dangerous dog shall, be strictly liable for medical costs resulting from injuries by such dog to a person, companion animal, farm animal or domestic animal.
The facts of this case establish that the defendant's dog is a dangerous dog under both the AML & NYCAC. There was no need to establish the dog had vicious propensities to impose liability for the costs the claimant incurred in treating her dog's injuries. Medical expenses also include veterinary expenses.
Addressing a cause of action for nuisance:
Although there may not be a cause of action for negligence because of the current position of the Court of Appeals, the "leash law" may provide another basis for claimant and that is the tort of nuisance.
A basis for this claim is set forth in [the RCNY], "Control of dogs and other animals to prevent nuisance," which provides:
A person who owns, possesses or controls a dog, cat or some other animal shall not permit the animal to commit a nuisance on a sidewalk of any public place, on a floor, wall, stairway, sidewalk, lawn, garden or roof of any public or private premises used in common by the public, or on a fence, wall, stairway or entranceway of a building abutting a public place.
Nuisance is not otherwise defined, but it does not appear to be limited to enforcement of the "pooper scooper law." "Animal nuisance" is defined [in the RCNY] separately. It states that:
Animal nuisance shall include but not be limited to animal feces, urine, blood, body parts, carcasses, vomitus and pervasive odors; animals that carry or are ill with contagious diseases communicable to persons or other animal; and dangerous dogs.
The question arises does the reference [to] "nuisance" mean it is limited to the…definition of "animal nuisance" or is it meant in the broader legal definition of nuisance? In general, "nuisance" is used to describe the tort arising from the consequences of conduct, rather than the type of conduct involved which causes inconvenience to others…Had the drafters wanted the term to be limited to the definition of "animal nuisance" that is the term they would have used. Because they did not, it must be concluded they were using the common law meaning of nuisance and it could be applied to cover other actions of the pet arising from the owner's failure to control the dog or cat and is not limited to the "pooper scooper law."
Applying these definitions, it must be concluded that the actions of the defendant in falling to control his dog created a "nuisance" under the Health Law. First, because the defendant's dog menaced the claimant it would be classified as a "dangerous dog" and as a "dangerous dog" defendant created an "animal nuisance" under the statute. Second, the definition of "animal nuisance" says it is "not limited to" those categories set forth in the statute, which means that other actions of animals may be termed a nuisance and create liability on the owner or person in control of the animal.
The New York City Administrative Code has adopted a "Dangerous Dog Regulation and Protection Law. It too has certain definitions and rules applicable to this case. It defines a "dangerous dog" as:
Any dog that when unprovoked, approaches, or menaces any person in a dangerous or terrorizing manner; or in an apparent attitude of attack, upon the streets, sidewalks, or any public grounds or places; or (2) any dog with a known propensity, tendency or disposition to attack when unprovoked, to cause injury or to otherwise endanger the safety of human beings or domestic animals; or (3) any dog which bites, inflicts injury, assaults or otherwise attacks a human being or domestic animal without provocation on public or private property; or (4) any dog owned or harbored primarily or in part for the purpose of dog fighting on any dog trained for dog fighting[.].
There is a problem with this statute in that it appears to be different from the AML. The AML lists what most people consider "household pets" as "companion animals" while it considers "domestic animals" as what us "city-slickers" would call farm animals, that is animals raised in confinement generally for monetary purposes. However, the RCNY refers to cats and dogs as "domesticated" animals and not "companion" animals. The problem is [the NYCAC] does not use the term "domesticated" it uses "domestic" which is not dogs and cats under the state law.
So if the NYCAC means domestic as defined in the AML it would mean that should Bill Sikes dog, "Bull's Eye" escape from the stage door of "Oliver," run to "Pippin" and attack Theo's duck-Sikes would be liable; likewise if Bull's Eye takes a nip out of Louise's lamb backstage at "Gypsy,"-Sikes again would be at fault; but if Bull's Eye injures Sandy during "Annie," — there would be no liability even if Sandy's owner, Bill Berloni suffered loss of income because Sandy's understudy would have to go on.
Observing that:
It seems clear that the drafters of this statute were aware of the case law differentiating between dogs with vicious propensities and situations where the public needed to be protected when the dog did not have vicious propensities but a reasonable person would feel threatened. This raises the question of what happens when the injured dog is a "working dog" either in the entertainment industry, for breeding or for shows. Not permitting a negligence suit for damages leaves the injured owner remediless and having to absorb all the expenses incurred when the other owner fails to control the dog in violation of the leash law.
[The NYCAC] recognizes that there are instances where the owner would not face a "dangerous dog" charge such as the person injured was trespassing or committing a tort on the premises or was abusing the dog. The section also states that "(i)f the trespass is determined to be an innocent nature, the commissioner may, find the dog to be dangerous."
Also, indicative that the drafters of the statute believed that persons found in violation under this law would face some civil liability is the language of [the] NYCAC…which permits the commissioner to order the owner of a dangerous animal to maintain, in full force and effect, a liability insurance policy of one hundred thousand dollars for personal injury or death of any person, resulting from an attack of such dangerous dog. If New York State does not recognize any cause of action except if the dog has vicious propensities, why should the commissioner be able to require the owner to obtain liability insurance when the owner cannot be negligent and the dog would still get "one free bite."
[The NYCAC] sets forth the violation and penalties to which any person who failed to comply with the New York City Dangerous Dog Regulation and Protection Law will be subject. First, such person is guilty of a misdemeanor including a fine of between $500.00 and $1,500.00 as well as imprisonment for not more than one year. Second, there is an independent civil penalty which can be assessed of between $500.00 and $1,500.00. But more relevant to this proceeding, is the third subparagraph which permits any fine or penalty assessed to be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings or other damages resulting from such injury. If, as the Court of Appeals has held, there is no civil liability, why would the dog owner pay the injured party? Obviously, payment would be made by the owner out of sense of guilt or acceptance of responsibility or just general altruism and not because it could eliminate or reduce any potential damage claim in a civil lawsuit, because there is no possible suit for negligence, and if the only ground for suit is strict liability, any medical expenses incurred would be recovered as damages.
The Court of Appeals position leads to the conclusion that the purpose of the "leash law" is revenue raising only and not to protect the public from uncontrolled pets, as the criminal and civil penalties are imposed irrespective of whether the dog has vicious propensities.
The actions of the defendant in not having a completely fenced yard and failing to control his dog so that any member of the public whether walking their own dog or not would feel threatened or afraid to walk in front of defendant's house on a public sidewalk created a nuisance. Claimant suffered damages because of the nuisance created by the defendant in that her dog was bitten and required veterinary treatment.
And concluding that:
Judgment for claimant. Claimant has proven a prima facie case of nuisance. Claimant also established a prima facie case for negligent control of a dog in violation of the municipal ordinances. Claimant has established that the defendant's dog was a "dangerous dog" as defined in the statutes and as such the defendant is strictly liable for all medical treatment. However, because the Court of Appeals has determined that cause of action for negligent control and supervision of the dog is not viable in New York, claimant cannot recover on that theory. Claimant has not submitted any proof that the defendant's dog had vicious propensities. Therefore, the only grounds for recovery are common law nuisance and statutory nuisance, with damages being imposed by the AML on a strict liability basis.
The Court entered judgment in favor of Medina in the amount of $305.75, the total she paid for two veterinary treatments of the wounds.
Barrone v. Doe, 2017 NY Slip Op 32212(U), Sup. Ct. Suff. Co. (September 18, 2017)
Supreme Court, considering defendant's motion for summary judgment, summarized the facts:
This is an action to recover damages, inter alia, for personal injuries allegedly sustained by plaintiff Jeffrey Patrick Barrone…on June 1, 2013 when he was attacked by a dog, a white Akita named Shiro, owned by defendants Joseph and Elsa Leible…The incident took place at the Leibles' residence, a building owned by defendant Baywinds Trust…and occupied by the Leibles pursuant to a written lease agreement dated August 2, 2010. At the time of the incident, the plaintiff was 10 years old. The plaintiffs claim that all relevant times, the defendants had knowledge of Shiro's vicious propensities and ferocious nature.
The pending motions:
The plaintiff testified at his deposition that just prior to the incident, he was playing a video game with his friend, Joseph Leible, and another boy, Dylan, in Joseph's bedroom. When Shiro entered the room, the plaintiff began to pet him on his back. About a minute later, Shiro bit the plaintiff on his right cheek. He does not remember if Shiro barked or growled prior to the incident, and does not believe that either he or the other boys did anything to cause Shiro to bite him. He had been to Joseph's house many times before the incident and knew Shiro "pretty well." Although he did not like to play with Shiro because the dog would "run at you," he was not afraid of Shiro and would pet him whenever he was inside the house. When he and Joseph would walk the dog, Shiro would growl and bark at other dogs as well as people and cars that passed by. He was not aware of Shiro having bitten anyone else, although Joseph had told him on many occasions of an incident in which Shiro had bitten another dog. Prior to the incident, he had seen Shiro tied to the railing in front of the house and had also observed a "Beware of Dog" sign at the house.
Patricia Barrone, the plaintiff's mother, similarly testified that she observed Shiro tied to a handrail adjacent to the cement steps in front of the Leibles' house "almost daily" and that there was a large "Beware of Dog" sign next to the front door. She had never seen Shiro attack any person prior to this incident; however, the Leibles had told her of an earlier incident that had taken place when Shiro was owned by Elsa Leible's brother-in-law in which a smaller dog had gone to eat at Shiro's bowl in the garage and Shiro had picked that dog up by the back of the neck and thrown it into the garage wall. The Leibles had also told her of an incident during that time in which Shiro had chased a deer and taken it down. She had observed Shiro barking at other dogs and chasing squirrels. She had also observed Shiro barking and growling at a meter reader. Elsa Leible had described Shiro to her as "unpredictable," noting that he was not trained to be around other kids, that he "could snap" and that she "always wanted to keep an eye on him" whenever the kids were around. Patricia had warned her son to stay away from the dog as much as possible but did not think that he would ever bother the kids; she was not as concerned about Shiro around her children as she was about Shiro around her dog.
Elsa Leible testified at her deposition that she and her husband acquired Shiro from her brother-in-law in North Carolina toward the end of October 2012. She had instructed the neighborhood children. as a matter of caution, that they should not put their face or anything else in front of Shiro's, but never gave them instructions about petting or not petting him. She had also instructed the neighborhood children mainly for the benefit of the Barrone children, because they had done it before — that they were not to come into the house without knocking or without her being there. She never warned the Barrone children not to play with the dog, and never told them that Shiro was unpredictable or that he could snap. Just prior to the incident, the plaintiff and his younger sister, Isabella, had been playing at the house, and she had sent them home because she had to take her own daughter. Alexandra, to a piano lesson. The plaintiff had then returned to the house without her knowledge or permission and proceeded to Joseph's bedroom, where the incident took place. Immediately afterward, Joseph and Dylan told her that the plaintiff had startled Shiro when he ran into the bedroom, that he had approached Shiro quickly and put his face near the dog's, and that Shiro had bitten him. When Patricia Barrone entered the house following the incident, she said to Elsa that she had warned the plaintiff not to put his face in front of a dog's face, and that he was always putting his face in front of his own dog's face, and that his own dog frequently snapped at him. When Elsa walked Shiro, he did not bark at people or other dogs, and did not attempt to run after people or other dogs. Shiro was generally kept inside and roamed freely throughout the house. When Shiro was inside, he would bark only if someone came to the front door. When he was tethered in the front yard, he did not bark when people walked by. She was not aware of any incidents involving Shiro prior to June 1, 2013 and never saw Shiro growl at anyone or jump toward anyone.
Laurene Chavez, a neighbor, testified at her deposition that prior to June 1, 2013, Shiro and her dog, a Husky, would play together "with absolutely no problems at all." She described Shiro as "very passive." While observing Shiro daily for a period of nearly two years, she never saw Shiro growl at anyone, jump on anyone, bare his teeth toward anyone, attack another animal, or wear a muzzle; more typically, she would observe Shiro tethered and lying down on the front lawn, watching the neighborhood kids play.
Richard Silverman, another neighbor, testified at his deposition that he owned a Miniature Dachshund, and that prior to June 1, 2013, Shiro and his dog would play together "very well." He was aware of no incidents regarding Shiro apart from the one involving the plaintiff. Although he observed Shiro about 20 times prior to the incident, he never saw Shiro act in a manner that he felt would put others at risk of harm, or growl at anyone, or bite anyone, or bare his teeth at anyone, or bark at any other animal, or chase any other animal. He described Shiro as "friendly" and a "marshmallow."
According to the affidavit and deposition testimony of Louis Bonavita, Baywinds' trustee, he visited the Leibles' residence only three or four times between the end of October 2012 and the end of July 2013. On only one of those occasions did he observe a dog at the premises. He described the dog as "white" and "very friendly." The dog was behind Elsa Leible after she opened the door and then retreated into the house; it did not bark, growl, snarl or do anything else to suggest it had any vicious propensities. He was not aware of any incident, other than the one involving the plaintiff, where the dog is alleged to have bitten or attacked anyone, nor was he aware of any incident where the dog exhibited any vicious propensities. Aside from the landscapers hired by Baywinds to provide landscaping services at the property, no one else from Baywinds visited the premises during that time.
"An owner's liability for a dog bite or attack is determined solely by application of the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities"…"To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, 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 demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl, snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm"[.]
Here, the defendants established their prima facie entitlement to summary judgment by demonstrating that they were not aware, nor should they have been aware, that Shiro had ever bitten anyone or exhibited any aggressive behavior. Although Shiro had lived with the Leibles, including two young children, for several months prior to the incident and had free range of the house, the defendants and their witnesses averred that they had no knowledge Shiro had ever acted in a hostile or aggressive manner, and that Shiro had never bitten, growled at, jumped on, bared his teeth toward, or attacked anyone during that time[.]
The plaintiffs, in opposition, failed to raise a triable issue of fact. To the extent the plaintiff seek to rely on observational evidence of Shiro's barking, chasing squirrels, and other similar acts, the court notes that those are normal canine behaviors; far from suggesting threatening or menacing proclivities, this is "what dogs do"…That Shiro may have growled at other dogs when he was on walks, or even growled at a meter reader is likewise insufficient to raise a triable issue of fact as to any vicious propensities…Evidence of a "Beware of Dog" sign on the property and that Shiro was frequently tethered in the front yard are similarly insufficient, absent proof of vicious behavior…As to the incidents and characterizations of Shiro's aggressive and unpredictable behavior allegedly conveyed to Patricia Barrone by one or more of the Leibles, these are inadmissible hearsay insufficient, on their own, to preclude the granting of summary judgment…And despite the stories the plaintiffs claim to have heard regarding Shiro, it does not appear that Patricia Barrone took any steps to prevent the plaintiff from playing at the Leibles' house, nor that the plaintiff, who was a frequent visitor there, was afraid of the dog[.]
Mazurek v. Mazurek, 2017 NY Slip Op 51436(U), Sup. Ct. Warren Co. (October 17, 2017)
Supreme Court summarized the facts:
Plaintiff Joseph C. Mazurek and defendant Kimberly A. Mazurek were married on November 29, 2005. While there are no children of the marriage, the couple adopted a dog — Yukon — in 2008. On August 16, 2010, plaintiff commenced an action for divorce in Hamilton County on the grounds of constructive abandonment…While issue was joined in November 2010, the parties apparently reconciled some time thereafter and plaintiff did not proceed with prosecution. The parties' relationship then deteriorated again and a Separation Agreement was executed on May 31, 2012, which Agreement was filed with the Albany County Clerk on June 14, 2012.
On August 7, 2017, plaintiff commenced this action for divorce upon the grounds of living separate and apart pursuant to a written separation agreement for a period of one or more years…Presently before the Court is plaintiff's motion by Order to Show Cause for immediate possession of Yukon[.]
Plaintiff's contentions:
It appears that the parties have shared possession of Yukon since executing their Separation Agreement. Plaintiff, however, contends that defendant has become "dramatically unable" to care for Yukon during the past year as a result of her alcoholism. In this regard, plaintiff asserts that defendant was hospitalized for several weeks in July 2016 to undergo emergency treatment for cirrhosis of the liver and nonetheless "resumed active, regular alcohol consumption in January 2017." Plaintiff further asserts that defendant has neuropathy and bipolar disorder and "takes more than 20 prescription medications, several of which are narcotics and psychotropic[,] and she regularly ingests these medications while consuming alcohol." According to plaintiff, "[d]efendant now refuses to allow [him] any access whatsoever to Yukon." Plaintiff seeks immediate possession of the dog, contending that "[d]efendant's dangerous conduct and behavior is causing harm to Yukon and imminent risk of serious injury or death to Yukon."
Defendant's response:
In opposition to the motion, defendant contends that she is Yukon's rightful owner, submitting a copy of the dog's rabies certificate which lists her as "owner of [the] animal." Defendant states that "[she] did have adoption papers indicating that [she] was the owner of Yukon, but [that] plaintiff took [them] when he left [her] home in June." According to defendant, she adopted "Yukon in 2008 at the recommendation of [her] treating physicians after in-patient treatment" and he was intended to be "a therapy dog." Defendant admits to suffering from several mental health conditions, some of which have required inpatient treatment in the past, but contends that she is "perfectly capable, physically and mentally, of caring for Yukon."
Defendant further contends that "plaintiff has been mentally and physically abusive" throughout their marriage, often "us[ing] Yukon to abuse [her]." As one example, defendant states as follows:
[P]laintiff would keep Yukon outside in a car when we were both inside the house. If I wanted Yukon to come in, [p]laintiff would tell me Yukon didn't want to come in and would prevent me from bringing him in.
According to defendant, "plaintiff has filed the instant motion to further attempt to harass and abuse [her], or force [her] to reconcile with him if he is granted possession of Yukon."
Plaintiff's reply:
In his reply…plaintiff denies ever having abused defendant and reiterates his belief that the dog is in imminent danger. Plaintiff also submitted a statement from Yukon's veterinarian, whose practice is located in Warren County, indicating that plaintiff has "taken exemplary care of Yukon over the years."
Concluding, as to the motion for immediate possession that:
Notwithstanding his several contentions, plaintiff has failed to proffer any concrete proof that Yukon is not being properly cared for by defendant. In this regard, the Court observes that defendant has case workers in her home on a regular basis and, if the dog was in imminent danger, appropriate steps would likely have been taken long ago. Under the circumstances, plaintiff's motion for immediate possession of Yukon is denied in its entirety.
Hope Horizon Realty v. Johnson, 2017 NY Slip Op 51052(U), City Court of Mount Vernon (August 21, 2017)
On or about August 4, 2016, the landlord commenced this holdover summary proceeding seeking to evict the tenants on the ground that the tenants had failed to cure their violation of the no-pet clause in the parties' lease. Petitioner Hope Horizon Realty claims that tenants had violated their lease by harboring two cats without landlord's permission and seeks a final judgment of possession of the subject apartment and a money judgment in the amount of $7,262.05 for use and occupancy through August 2017.
In their answer to the petition the tenants claimed, among other things, that the proceeding was instituted in bad faith and that the landlord had waived enforcement of the no-pet clause by commencing the instant proceeding more than three months after landlord had become aware that tenants were harboring the cats and, thus, that they are entitled to retain their cats and possession of the premises. Tenants also seek an abatement for [breach of the] warranty of habitability complaints.
The testimony at trial:
At the trial, petitioner presented the testimony of five fact-witnesses including the building's superintendent, two maintenance workers of petitioner and management personnel all of whom maintained they never knew of or saw any cats or evidence of cats in the apartment until May 22, 2016, when the landlord sent workers to repair Notice Violations from the City of Mount Vernon Building Department. Maintenance employee "Jomo" Obi testified that upon noticing the cats on the aforementioned date he immediately reported the same to the office triggering the Notice to Cure being served on the respondents on June 8, 2016.
To the contrary, respondents and their fact witness testified that the landlord's maintenance personnel knew or should have known that cats were in the apartment resulting from certain visits at the premises between the years 2009-2016. Respondents alleged that when the maintenance workers of the petitioner came in the apartment to do repairs, on all such occasions the cats were present in the apartment and that traditional accouterments of household pets, including a litter box and jungle gym, were in plain view.
The lease:
There is no dispute that respondents' lease prohibits keeping cats in their apartment. The no-pet clause reads that "dogs, cats or other pets are not allowed in the apartment or building." A second no-pet clause is also reiterated on the last page of the lease. The lease also contains a provision that its terms may be changed only by written agreement, and it is undisputed that landlord and tenants in this matter did not enter into such an agreement. Notwithstanding the no-pet clauses, both respondents admitted they were harboring cats in their apartment at the time the lease was executed and have continued to do so through the date of the Notice to Cure and the time of trial."No-pet" clauses have been held to be enforceable and to be substantial obligations of the tenancy…The no-pet waiver rule was intended to require that landlords enforce a no-pet clause promptly or be deemed to have waived that breach of the lease[.]
The three-month rule:
Where an owner or his or her agent has knowledge of a tenant's harboring of a pet openly and notoriously in an apartment for a period of three months or more and fails to commence a summary proceeding to enforce a lease provision prohibiting such activity, the lease provision is waived[.]
Even when viewed in the light most favorable to the tenants, the trial evidence fails to establish that landlord waived its right to enforce the "no-pets" provision of the governing lease agreement…While tenant, Karen Johnson testified that she never hid her cats, she offered scant evidence on the critical "open and notorious" element of the statutory waiver defense. All that was shown in this regard was that one cat became a permanent resident of the subject third-floor apartment in 2001, and another cat was purchased in 2008. Tenants made no showing that the cats were in open view in or near the building premises at any time other than the isolated occasions that it escaped in the third floor hallway. While the tenants claimed that the presence of the cats inside the apartment was detectible by petitioner's maintenance employees, these same employees testified that the cats were never observed prior to the May 2016 inspection of the apartment. In this posture, no fair interpretation of the evidence can support a finding that the presence of the cats "were so open, notorious and visible as to support an inference that the [landlord] must or should have known of it."…Moreover, in response to the Notice to Cure, tenant Karen Johnson in an email on June 24, 2016 wrote to petitioner's office confirming her intent to remove the two cats from her apartment by 6 p.m. that day. At trial, Johnson admitted that she never permanently removed the cats from the apartment and that any representation she removed the cats was untrue.
While even a nonwaiver clause may be waived in some circumstances, generally as evidenced by the conduct of the parties, beyond the mere acceptance of rent…the credible evidence and testimony adduced at trial, including providing the lease to tenants with the no-pet clauses, telephone calls and emails to tenants and discussions with them, this Court finds that there was no waiver of the no-pet clause by the petitioner.
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