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THE MAJORITY IN THIS DOG-BITE CASE DETERMINED DEFENDANT DID NOT DEMONSTRATE A LACK OF KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES; TWO DISSENTERS ARGUED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED BECAUSE THE DOG HAD NEVER EXHIBITED VICIOUS BEHAVIOR BEFORE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion for summary judgment in this dog-bite case should not have been granted. The dissenters argued defendant demonstrated she did not have knowledge of the dog’s vicious propensities:

… [D]efendant submitted plaintiff’s deposition testimony that, while plaintiff was at defendant’s door, the dog came running and was barking, pushed the door open, and lunged at plaintiff, biting him in the right thigh. After plaintiff was on the ground, having been knocked to the bottom of the front steps, the dog bit the back of plaintiff’s left leg and then his calf. Plaintiff further testified that, immediately after the incident, defendant told plaintiff, who was wearing a winter coat at the time of the attack, that “the dog doesn’t like people who wear coats.” Plaintiff also testified that defendant told him that “the dog was protective.” Defendant further submitted the deposition testimony of defendant Jennifer McMahon, who lived in the home and was familiar with the dog, that the dog was “protective” of the persons who lived in the home and that, when a stranger was present in the house, the dog would get in front of a member of the household to protect him or her. That evidence, combined with the evidence of the unprovoked and vicious nature of the attack and the severity of the injuries sustained by plaintiff, is “sufficient to raise triable issues of fact as to whether the dog[] had vicious propensities and whether. . . defendant[] knew or should have known of them” … .

From the dissent:

… [D]efendant’s submissions in support of the motion, including the deposition testimony of defendant and the tenant, establish that the dog was a gentle, well-behaved family dog, who was not aggressive, menacing, or intimidating, was not a guard dog, and had never growled at, nipped, or bitten anyone before … . Neither defendant nor the tenant had ever observed the dog exhibit any aggressive behavior in the past. In sum, defendant established that the dog had not previously behaved in a threatening or menacing manner … .

The majority nonetheless cites evidence in defendant’s submissions that defendant and the tenant characterized the dog as protective and having a dislike of people wearing coats, but conspicuously absent from the majority’s analysis is any explanation of how these characteristics reflect a ” ‘propensity to do any act that might endanger the safety of the persons and property of others in a given situation’ ” … . Zicari v Buckley, 2023 NY Slip Op 00788, Fourth Dept 2-10-23

Practice Point: The majority in this dog-bite case held that the defendant did not demonstrate she had no knowledge of the dog’s vicious propensities. The two dissenters disagreed.

 

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THERE WERE QUESTIONS OF FACT WHETHER DEFENDANTS IN THIS DOG-BITE CASE, INCLUDING THE LANDLORD, WERE AWARE OF THE DOG’S VICIOUS PROPENSITIES; THE PRE-DISCOVERY SUMMARY JUDGMENT MOTION WAS PREMATURE; THE ACTION WAS NOT FRIVOLOUS; THE DEFENDANTS WERE NOT ENTITLED TO ATTORNEY’S FEES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants in this dog-bite case were not entitled to summary judgment, the action was not frivolous, and defendants were not entitled to attorney’s fees. In addition, the summary judgment motion, made before discovery, was deemed premature. The court found there were questions of fact whether defendants, including the landlord (held to an ordinary negligence standard) were aware of the dog’s vicious propensities. The relationships among the parties and the unsuccessful arguments made by defendants in support of summary judgment are too detailed to fairly summarize here:

… “[A]n owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal’s vicious propensities” … . “Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities” … . “Strict liability can also be imposed against a person other than the owner of an animal which causes injury if that person harbors or keeps the animal with knowledge of its vicious propensit[ies]” … .

… “[A] landlord who, with knowledge that a prospective tenant has a vicious dog which will be kept on the premises, nonetheless leases the premises to such tenant without taking reasonable measures, by pertinent provisions in the lease or otherwise, to protect persons who might be on the premises from being attacked by the dog may be held liable [under a negligence standard] to a person who while thereafter on the premises is bitten by the dog” … . When, “during the term of the leasehold[,] a landlord becomes aware of the fact that [the] tenant is harboring an animal with vicious propensities, [the landlord] owes a duty to protect third persons from injury . . . if [the landlord] ‘had control of the premises or other capability to remove or confine the animal’ ” … . Michael P. v Dombroski, 2022 NY Slip Op 07318, Fourth Dept 12-23-22

Practice Point: A landlord who is aware of a dog’s vicious propensities can be held liable in a dog-bite case under a standard negligence theory.

 

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THE STRICT LIABILITY STANDARD IN DOG-BITE CASES APPLIES HERE WHERE THE DOG WAS HARBORED BY THE DEFENDANT UNTIL THE ANIMAL SOCIETY COULD FIND SOMEONE TO ADOPT HIM; THE NEGLIGENCE STANDARD WHICH APPLIES TO A DOG-BITE IN A VETERINARIAN’S WAITING ROOM (WHERE THE VETERINARIAN IS THE DEFENDANT) IS NOT APPLICABLE (FOURTH DEPT).

The Fourth Department determined the plaintiff’s motion to amend the complaint in this dog-bite case by adding a negligence cause of action was properly denied. The Court of Appeals recently held that a veterinarian could be liable for a dog-bite under a negligence theory where a dog in the veterinarian’s waiting room bit a customer. Here the dog was owned by an animal society and had been placed with defendant O’Rourke until the society could find someone to adopt him:

Although O’Rourke does not own the dog that bit plaintiff, “[a]n owner’s 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’ ” … . * * *

Even assuming, arguendo, … [plaintiff could assert] a negligence cause of action against O’Rourke, … plaintiff would still have to establish in support of her negligence cause of action that O’Rourke had knowledge of the dog’s alleged “vicious propensities” … . … “[T]he vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet owners—such as landlords who rent to pet owners—under a negligence standard … .

… [P]laintiff’s proposed negligence cause of action against O’Rourke does not allege that O’Rourke had knowledge of the dog’s vicious propensities; instead, it alleges that O’Rourke was negligent because she did not “investigate the subject dog accepted from the foster care program . . . before introducing it to her property, thereby creating a dangerous condition on the property which she had a nondelegable duty to keep reasonably safe.” The proposed complaint therefore fails to state a viable negligence cause of action against O’Rourke. Cicero v O’Rourke, 2022 NY Slip Op 07316, Fourth Dept 12-23-22

Practice Point: The Court of Appeals recently held a veterinarian could be liable under a standard negligence theory for a dog-bite which occurs in the veterinarian’s waiting room because of the specialized knowledge of animal behavior attributed to a veterinarian. The negligence standard does not apply to a person who is harboring a dog for an animal society until someone adopts the dog. In that case, the strict liability (requiring knowledge of the dog’s vicious propensities) standard still applies.

 

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IN THIS DOG-BITE CASE, VETERINARY RECORDS ARE DISCOVERABLE BY SUBPOENA (FOURTH DEPT).

The Fourth Department, in this dog bite case, determined veterinary records are not protected by Education Law 6714 and are discoverable:

Education Law § 6714 (1) provides that, “[u]pon written request from the owner of an animal which has received treatment from or under the supervision of a veterinarian, such veterinarian shall provide to such owner within a reasonable time period a copy of all records relating to the treatment of such animal. For the purposes of this section, the term ‘records’ shall mean all information concerning or related to the examination or treatment of the animal kept by the veterinarian in the course of his or her practice. A veterinarian may impose a reasonable charge for providing copies of such records. A veterinarian may make available to the owner either the original or a copy of such record or document including x-rays, electrocardiograms and other diagnostic tests and may impose a reasonable fee for the reproduction of such copies.”

Nothing in the plain language of that statute prohibits a veterinarian from providing a copy of treatment records pursuant to a subpoena. Had the legislature intended to create such an exemption, it could have done so using language similar to that found in Education Law § 6527 (3), which provides that “records relating to performance of a medical or a quality assurance review function . . . shall [not] be subject to disclosure under article thirty-one of the [CPLR] except as hereinafter provided or as provided by any other provision of law” … . Ashley M. v Marcinkowski, 2022 NY Slip Op 04437, Fourth Dept 7-8-22

Practice Point: Pursuant to Education Law 6714, veterinary records in this dog-bite case are discoverable by subpoena.

 

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HAPPY, AN ELEPHANT IN THE BRONX ZOO, IS NOT A “PERSON” ENTITLED TO THE PROTECTION OF A WRIT OF HABEAS CORPUS; THE PETITION SOUGHT HAPPY’S TRANSFER TO AN ELEPHANT SANCTUARY; TWO DISSENTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two dissenting opinions, determined an elephant at the Bronx Zoo (Happy) was not entitled to the protection of a writ of habeas corpus. The petition sought Happy’s transfer from the zoo to an elephant sanctuary:

For centuries, the common law writ of habeas corpus has safeguarded the liberty rights of human beings by providing a means to secure release from illegal custody. The question before us on this appeal is whether petitioner Nonhuman Rights Project may seek habeas corpus relief on behalf of Happy, an elephant residing at the Bronx Zoo, in order to secure her transfer to an elephant sanctuary. Because the writ of habeas corpus is intended to protect the liberty right of human beings to be free of unlawful confinement, it has no applicability to Happy, a nonhuman animal who is not a “person” subjected to illegal detention. Thus, while no one disputes that elephants are intelligent beings deserving of proper care and compassion, the courts below properly granted the motion to dismiss the petition for a writ of habeas corpus … . Matter of Nonhuman Rights Project, Inc. v Breheny, 2022 NY Slip Op 03859, CtApp 6-14-22

Practice Point: So far, sentient non-humans (like Happy, an elephant in the Bronx Zoo) are not entitled to the protection against “illegal custody” afforded by a writ of habeas corpus.

 

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AN AFFIDAVIT WITH A PARTY STATEMENT AND A NON-PARTY AFFIDAVIT WHICH WERE NOT DISCLOSED SHOULD HAVE BEEN CONSIDERED IN OPPOSTION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE (FOURTH DEPT)

The Fourth Department, reversing Supreme Court and reinstating the complaint in this dog-bite case, determined an affidavit which should have been disclosed because it contained the statement of a party was admissible in opposition to defendant’s motion for summary judgment (the Davis affidavit). In addition, the affidavit of a non-party witness should have been considered by the court (the Cheetham affidavit). Even if the discovery demands are read to include the non-party affidavit, the affidavit was privileged as material prepared for litigation and therefore not discoverable. Supreme Court had precluded both affidavits on the ground they had not been disclosed:

… [W]e agree with the court that the affidavit of Davis, insofar as it contained a party statement of defendant, should have been disclosed. CPLR 3101 (e) “enables a party to unconditionally obtain a copy of his or her own statement[,] creating an exception to the rule that material prepared for litigation is ordinarily not discoverable” … . We nevertheless agree with plaintiff that the court abused its discretion in precluding Davis’s affidavit from consideration in opposition to the motion … . Defendant knew of Davis as a person of interest, which is why counsel sought to depose her approximately four months prior to making the motion, and defendant did not seek the assistance of the court to compel Davis’s production … . Inasmuch as plaintiff is not precluded from relying on Davis’s affidavit to oppose summary judgment, Davis is not precluded from testifying at trial … .

We also conclude that the court abused its discretion in precluding the Cheetham affidavit from consideration. Cheetham was listed as a witness in discovery and was deposed. Cheetham is not a party to this action, and his affidavit did not include any statements of a party. Even assuming that Cheetham’s statement was discoverable, we note that defendant’s discovery demands did not include a demand for nonparty witness statements. Assuming further that defendant’s discovery demands could be read to include a request for the statement of a nonparty witness, i.e., Cheetham, we conclude that Cheetham’s statement was conditionally privileged as material prepared in anticipation of litigation (see CPLR 3101 [d] [2 …). Defendant would be unable to show any substantial need for Cheetham’s statement inasmuch as Cheetham was deposed and therefore provided the substantial equivalent of the material contained in the statement … . Vikki-lynn A. v Zewin, 2021 NY Slip Op 05412, Fourth Dept 10-8-21

 

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DEFENDANT’S FOR CAUSE CHALLENGE TO A JUROR IN THIS ARSON AND ANIMAL TORTURE CASE SHOULD HAVE BEEN GRANTED; THE JUROR EXPRESSED A HIGHLY EMOTIONAL RESPONSE TO INJURY TO ANIMALS AND THE COURT NEVER SPECIFICALLY ASKED IF SHOULD COULD BE FAIR AND IMPARTIAL (THIRD DEPT).

The Third Department, reversing defendant’s convictions of arson and torturing animals, determined defendant’s for cause challenge to a juror who expressed her highly emotional reaction to the injury of animals should have been granted:

Defendant challenged this prospective juror for cause on the ground that “because of the animals, she couldn’t be fair and impartial.” County Court denied this challenge noting that prospective juror No. 16 had indicated that “it would be very difficult” and that “she would cry,” not that she had stated she could not be impartial. Defendant then exercised a peremptory challenge to remove prospective juror No. 16, and later exhausted his peremptory challenges. Relative to the ability of prospective juror No. 16 to be fair and impartial due to her affinity for animals, despite being asked twice, she never unequivocally stated that she could be … . Thus, the court should have posed questions to rehabilitate the prospective juror “by obtaining such assurances or, if rehabilitation was not possible,” excuse her … . By failing to do so, the court committed reversible error, considering that defendant exercised a peremptory challenge to remove this prospective juror and exhausted such challenges … . People v Rios, 2021 NY Slip Op 01530, Third Dept 3-18-21

 

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VETERINARY CLINIC MAY BE LIABLE IN NEGLIGENCE FOR INJURY CAUSED BY A DOG IN THE CLINIC’S WAITING ROOM, BUT THE CLINIC’S LIABILITY SHOULD NOT TURN ON WHETHER THE CLINIC WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES, THE STRICT LIABILITY STANDARD IMPOSED ON DOG-OWNERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined that the defendant veterinary clinic (Palmer) should not have been awarded summary judgment in this dog-bite case. As a veterinarian was returning a dog (Vanilla) which had just been treated to the dog’s owner in the waiting room the dog slipped out of its collar and allegedly attacked plaintiff. The question was whether the liability theory requiring knowledge of a dog’s vicious propensities applied to the clinic as it does to a dog-owner. The clinic had been awarded summary judgment on the ground it had demonstrated it was not aware of the dog’s vicious propensities. The Court of Appeals held the case against the clinic should be analyzed under a standard negligence theory, not under the strict liability theory applicable to dog-owners:

The vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet-owners—such as landlords who rent to pet owners—under a negligence standard … . However, we have recognized that other competing policies and contemporary social expectations may be at play in certain instances where domestic animals cause injuries. For example, we held that the owner of a farm animal “may be liable under ordinary tort-law principles” when that farm animal is allowed to stray from the property on which it is kept … . …

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. …

… [W]e conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff’s claim. To be sure, “[w]e do not intend to suggest that [Palmer] would be subject to the same strict liability” as the owner of a domestic animal … . However, we are  satisfied that, under the circumstances presented here, a negligence claim may lie despite Palmer’s lack of notice of Vanilla’s vicious propensities. Furthermore, viewing the record in the light most favorable to plaintiff, as we must … , questions of fact exist as to whether the alleged injury to plaintiff was foreseeable, and whether Palmer took reasonable steps to discharge its duty of care. Thus, neither party was entitled to summary judgment. Hewitt v Palmer Veterinary Clinic, PC, 2020 NY Slip Op 05975, Ct App 10-20-20

 

COUNTY COURT MISAPPREHENDED THE LAW WHEN IT AFFIRMED TOWN COURT’S ORDER TO EUTHANIZE RESPONDENT’S DOG; MATTER REMITTED TO TOWN COURT (FOURTH DEPT).

The Fourth Department, reversing County Court and remitting the matter to Town Court, determined County Court misapprehended the applicable law in affirming Town Court’s finding that respondent’s dog (Brady) is a dangerous dog and directing the dog be euthanized pursuant to the Agricultural and Markets Law:

… [T]he court repeatedly misstated the applicable law. Before the hearing commenced, the court stated that, if it determined Brady was a dangerous dog, the court had only “two options”— euthanasia or permanent confinement. After the hearing, before delivering its decision from the bench, the court stated that it “can” order euthanasia “upon a finding the dog is dangerous.” Those statements are subtly different, and both are in error. As discussed above, mere dangerousness does not empower the court to order euthanasia or permanent confinement, which may be imposed only upon the establishment of an aggravating circumstance. Even where an aggravating circumstance is established, euthanasia and permanent confinement are not the court’s only options (see Agriculture and Markets Law § 123 [2], [3]). As a result of its mistaken understanding of the applicable law, the court ordered euthanasia without determining whether petitioner had established the existence of an aggravating circumstance and without considering other available relief.

We therefore modify County Court’s order by vacating that part affirming the order of the Justice Court insofar as it directed that respondent’s dog be euthanized, and we remit the matter to the Justice Court for a determination whether petitioner established the existence of an aggravating circumstance and for the imposition of remedial measures as permitted by statute and “as deemed appropriate under the circumstances” (Agriculture and Markets Law § 123 [2]). Matter of Town of Ogden v LaVilla, 2020 NY Slip Op 04032, Fourth Dept 7-17-20

 

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IT MAY HAVE BEEN ERROR TO ALLOW THE VICTIM TO TESTIFY ACCOMPANIED BY A DOG, BUT THE ISSUE WAS NOT PRESERVED; ALTHOUGH THE PROSECUTOR MADE AN IMPROPER COMMENT IT DID NOT REQUIRE REVERSAL; PROSECUTORS ADMONISHED THAT THEIR ROLE IS TO ENSURE JUSTICE IS DONE, NOT SIMPLY SEEK CONVICTIONS (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, noted that allowing the adult victim to testify accompanied by a dog may have been an error but was unpreserved. The court also found that a remark made by the prosecutor was improper (but not reversible error) and took the opportunity to address prosecutorial misconduct generally:

We conclude that defendant’s contention that the court abused its discretion when it permitted the adult victim to testify while accompanied by a dog is unpreserved because defendant did not object to that arrangement … . … Even assuming, arguendo, that defense counsel erred in not objecting to the court’s decision to let the victim testify while accompanied by a dog … , we conclude that the failure to object did not amount to ineffective assistance … .

… [I]t was improper for the prosecutor on summation to characterize defense counsel’s summation as evincing “a Brock Turner mentality”—inflaming the passions of the jury by specifically referring to a recent sexual assault case of nationwide notoriety that involved allegations similar to those made against defendant … .

… [W]e … take this opportunity to remind the People that ” [i]t is not enough for [a prosecutor] to be intent on the prosecution of [the] case. Granted that [the prosecutor’s] paramount obligation is to the public, [he or she] must never lose sight of the fact that a defendant, as an integral member of the body politic, is entitled to a full measure of fairness. Put another way, [the prosecutor’s] mission is not so much to convict as it is to achieve a just result’ ” … . To that end, we emphasize that “[p]rosecutors play a distinctive role in the search for truth in criminal cases. As public officers they are charged not simply with seeking convictions but also with ensuring that justice is done. This role gives rise to special responsibilities—constitutional, statutory, ethical, personal—to safeguard the integrity of criminal proceedings and fairness in the criminal process” … . People v Carlson, 2020 NY Slip Op 03336, Fourth Dept 6-12-20

 

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