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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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TORTIOUS INTERFERENCE WITH EMPLOYMENT AND DEFAMATION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION PROPERLY DISMISSED; ELEMENTS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff stated causes of action for tortious interference with employment and defamation against a fellow employee of the Central New York Society for the Prevention of Cruelty to Animals (CNYSPCA), The intentional infliction of emotional distress cause of action was properly dismissed. The Fourth Department explained the elements of each cause of action and noted that the documents submitted to prove the truth of the allegedly defamatory statements were not “essentially undeniable” and did not “utterly refute” the allegations:

Plaintiff commenced this action to recover damages for tortious interference with employment, defamation, and intentional infliction of emotional distress (IIED). According to the complaint, at all times relevant to this appeal, plaintiff was the Executive Director of the Central New York Society for the Prevention of Cruelty to Animals (CNYSPCA) and defendant Stacy Laxen, DVM was a veterinarian for the CNYSPCA. During her tenure with the CNYSPCA, plaintiff directed that several cats be euthanized due to an outbreak of ringworm. Soon thereafter, and based on plaintiff’s decision to approve euthanasia without input from a veterinarian, defendant Board of Directors of the CNYSPCA terminated plaintiff’s employment. …

“[A]n at-will employee may assert a cause of action alleging tortious interference with employment where he or she can demonstrate that the defendant utilized wrongful means to effect his or her termination . . . In such cases, the plaintiff is required to show: (1) the existence of a business relationship between the plaintiff and a third party; (2) the defendants’ interference with that business relationship; (3) that the defendants acted with the sole purpose of harming plaintiff or used dishonest, unfair, improper or illegal means that amounted to a crime or an independent tort; and (4) that such acts resulted in the injury to the plaintiff’s relationship with the third party” … .  …

… [W]e conclude that plaintiff sufficiently alleged that Laxen’s statements constituted defamation per se inasmuch as they purportedly injured plaintiff in her “professional standing”… . Furthermore, despite the court’s determination that plaintiff was a limited purpose public figure and Laxen was protected by the common interest qualified privilege, accepting the facts as alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference, we conclude that the complaint sufficiently alleged that Laxen acted with the requisite malice necessary to overcome those defenses … . Conklin v Laxen, 2020 NY Slip Op 00958, Fourth Dept 2-7-20

 

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DEFENDANTS’ DEPOSITION TESTIMONY IN THIS DOG-BITE CASE RAISED QUESTIONS OF FACT ABOUT DEFENDANTS’ PRIOR KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES, SUPREME COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this dog-bite case should not have been granted:

We conclude that defendants failed to meet their initial burden of establishing that they neither knew nor should have known that the dog had any vicious propensities … . In support of their motion, defendants submitted their deposition testimony. Defendant Ron Bush admitted at his deposition that defendants had purchased the dog in part for protection and that he considered a dog’s bark to act like an “alarm.” Moreover, defendant Patricia Bush testified that, when the dog was running toward plaintiff at the time of the incident, she directed plaintiff to “[s]tand still.” Both defendants admitted that there were three “Beware of Dog” signs posted on their premises. Thus, taken together, defendants’ own submissions raise a triable issue of fact whether defendants had prior knowledge of the dog’s vicious propensities … . Opderbeck v Bush, 2019 NY Slip Op 09224, Fourth Dept 12-20-19

 

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DOG OWNERS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG-BITE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the dog owners’ (Hoffmans’) motion for summary judgment in this dog-bite case should not have been granted. However the landlord’s and property manager’s motions for summary judgment were properly granted because they demonstrated no knowledge of the dog’s vicious propensities.  Plaintiffs’ child was bitten when visiting the Hoffmans’ apartment:

The sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability, whereby “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” … . “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation” … . “Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm” … .

The record shows, inter alia, that prior to this incident, the dog was often restrained within the Hoffman defendants’ apartment, particularly when visitors were present, but also, while only family members were present. By itself, the fact that a dog has been customarily confined cannot serve as the predicate for liability where “[t]here [is] no evidence that [the dog] was confined because the owners feared [it] would do any harm to their visitors” …  Here, however, the record contains evidence that the Hoffman defendants attempted to limit interaction between the dog and visitors. The record shows that [Hoffman’s child] attempted to secure the dog prior to letting [plaintiff’s child] into the apartment on the date of the incident. The record also shows that the Hoffman defendants acquired the dog partly to provide “security” for the family.

In addition, viewing the evidence in the light most favorable to the nonmovants … , the record shows that approximately two months prior to the incident, this dog allegedly attempted to bite the plaintiff, tearing his pants leg. Further, the evidence of the “intensity and ferocity” of the attack tends to establish the Hoffman defendants’ knowledge of the dog’s vicious propensities … . King v Hoffman, 2019 NY Slip Op 08994, Second Dept 12-18-19

 

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DEFENDANT WAS AWARE HER DOG COULD ATTACK ANOTHER DOG AND IT WAS FORESEEABLE A DOG OWNER WOULD TRY TO SEPARATE THE DOGS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this dog-bite case should not have been granted. Defendant was aware that her dog might attack a small dog like plaintiff’s and it was foreseeable plaintiff would try to separate the dogs:

“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’ ” … . Thus, “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities” … .

Even assuming, arguendo, that defendant met her initial burden on the motion, we conclude that plaintiff raised an issue of fact to defeat that motion. Plaintiff submitted her own affidavit, wherein she stated that, after she was bitten, defendant told her that defendant “was aware of the risk that her dogs would attack small dogs.” It was “foreseeable that if [defendant’s dog] attacked another dog, someone would attempt to pull the dogs apart and be injured in the process” … . Modafferi v DiMatteo, 2019 NY Slip Op 08342, Fourth Dept 11-15-10

 

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QUESTION OF FACT WHETHER LANDLORD KNEW OF THE DOG’S PRESENCE IN THE BUILDING AND WAS AWARE OF THE DOG’S VICIOUS PROPENSITIES, COMPLAINT AGAINST THE LANDLORD SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s dog-bite complaint against the landlord (New York City Housing Authority [NYCHA]) should not have been dismissed. Plaintiff alleged she was returning to her building after walking her dog when she was bitten by an unleashed pit bull owned by another resident of the building:

To hold a defendant landlord liable for injuries sustained in a dog bite incident, the plaintiff must establish the landlord’s knowledge of the dog’s presence, and its vicious propensities … . Knowledge of vicious propensities may be established by proof of prior acts of a similar kind of which the defendant had notice … .

Here, viewing the evidence in the light most favorable to plaintiff as the nonmoving party, the record presents triable issues of fact regarding NYCHA’s notice of the dog’s presence and its vicious propensities. NYCHA’s manager at the subject building testified that NYCHA had no knowledge of prior dog bite incidents. However, NYCHA’s internal records show that a dog bite occurred at the building about three months prior to the attack on plaintiff. While that internal document does not identify the dog or its owner involved in the prior attack and NYCHA’s manager stated that NYCHA does not keep records of complaints involving vicious animals, plaintiff testified that she had seen third-party defendant with the dog on several prior occasions, and that the dog acted aggressively … . Almodovar v New York City Hous. Auth., 2019 NY Slip Op 08129, First Dept 11-12-19

 

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CO-OP DISCRIMINATED AGAINST THE DISABLED COMPLAINANT BY REFUSING TO ALLOW HER TO KEEP A DOG IN HER APARTMENT (SECOND DEPT).

The Second Department determined the Commissioner of the NYS Division of Human Rights had properly found the co-op discriminated against complainant (Hough) by refusing to allow her to keep a dog in her apartment:

To establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, Hough was required to demonstrate that she is disabled, that she is otherwise qualified for the tenancy, that because of her disability it is necessary for her to keep a dog in order for her to use and enjoy the apartment, and that reasonable accommodations could be made to allow her to keep a dog … . The term disability, as defined by Executive Law § 292(21), means “(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment.”

Here, there was substantial evidence in the record to conclude that Hough suffered from generalized anxiety disorder, an impairment demonstrable by medically accepted clinical or laboratory diagnostic techniques, and that she required the use of a companion dog to use and enjoy her apartment. There is sufficient evidence that having a dog would affirmatively enhance Hough’s quality of life by ameliorating the effects of her disability, thus demonstrating necessity within the meaning of the Human Rights Law … . Matter of 1 Toms Point Lane Corp. v New York State Div. of Human Rights, 2019 NY Slip Op 07392, Second Dept 10-16-19

 

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TOWN COURT PROPERLY ORDERED THE EUTHANASIA OF RESPONDENT’S DOG AFTER THE DOG ATTACKED AND REPEATEDLY BIT A THREE-YEAR-OLD CHILD; THE DISSENTER ARGUED PETITIONERS DID NOT ESTABLISH THAT THEIR CHILD SUFFERED SERIOUS INJURY WITHIN THE MEANING OF THE AGRICULTURE AND MARKETS LAW (FOURTH DEPT).

The Fourth Department determined Town Court properly ordered the euthanasia of respondent’s dog, Wally, after the dog broke free, ran into petitioner’s yard, and repeatedly bit a three-year-old girl. The dissenter argued the proof did not demonstrate the child suffered serious injury within the meaning of the Agriculture and Markets Law:

Respondent does not dispute that petitioners established by clear and convincing evidence that her dog is a “dangerous dog” (Agriculture and Markets Law §§ 108 [24] [a] [i]; 123 [2]). A justice may direct humane euthanasia of a dangerous dog if, inter alia, the dog, without justification, attacks a person, “causing serious physical injury” (§ 123 [3] [a] …). The Agriculture and Markets Law defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (§ 108 [29]). The only issue here is whether the child sustained a “serious or protracted disfigurement” … . Inasmuch as those terms are used in the Penal Law definition of serious physical injury (see Penal Law § 10.00 [10]), reliance upon criminal cases involving what constitutes a serious or protracted disfigurement is appropriate. As petitioners correctly note, however, the Penal Law definition of a serious injury as, inter alia, a serious and protracted disfigurement … does not apply here.

Contrary to respondent’s contention, the evidence establishes that the child sustained a serious injury inasmuch as the dog attack caused serious or protracted disfigurement … . A “disfigurement” is “that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner” … . “A person is seriously’ disfigured when a reasonable observer would find her altered appearance distressing or objectionable” … . The standard is an objective one and depends on various factors, including the nature and the location of the injury … . We conclude that the injuries sustained by the child here, particularly the bite wound to the buttocks that required surgery and approximately 30 stitches, constitute serious disfigurement … . Although the analysis could end there, we conclude that those injuries also constitute a protracted disfigurement … . Matter of Workman v Dumouchel, 2019 NY Slip Op 06248, Fourth Dept 8-22-19

 

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PLAINTIFFS DID NOT DEMONSTRATE DEFENDANT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department determined defendant’s motion for summary judgment in this dog bit case should have been granted.  The evidence that the dog had barked at a neighbor did not demonstrate defendant was made aware of the incident and did not demonstrate when the incident occurred:

Even assuming, arguendo, that the dog possessed the requisite vicious propensities, we conclude that defendant met her initial burden on the motion by submitting deposition testimony from herself, her son, and her then boyfriend, which established that defendant lacked actual or constructive knowledge that the dog had any vicious propensities, and plaintiffs failed to raise an issue of fact … . In opposition to the motion, plaintiffs submitted the affidavit of one of defendant’s neighbors, who averred that, on at least two prior occasions, she had seen the dog roaming the neighborhood, and that the dog entered into her backyard and started to bark at her in an aggressive and angry way, thereby putting her in fear that she would be bitten by the dog. The neighbor does not aver that she informed defendant of the two incidents, and thus the affidavit does not raise an issue of fact whether defendant had actual knowledge of the dog’s vicious propensities. Furthermore, the neighbor’s affidavit does not detail when the two prior incidents occurred, and thus the affidavit does not raise an issue of fact whether defendant had constructive knowledge of the dog’s vicious propensities, i.e., that the vicious propensities had “existed for a sufficient period of time for a reasonable person to discover them” … . Jennifer M.C.-Y. v Boring, 2019 NY Slip Op 05901, Fourth Dept 7-31-19

 

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DEFENDANT DOG OWNER’S ACKNOWLEDGMENT SHE HAD HEARD THAT ONE OF HER DOGS NIPPED A BOY IN A PRIOR INCIDENT WAS NOT ADMISSIBLE EVIDENCE OF THE FACTS OF THE INCIDENT; THEREFORE PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT IN THIS DOG BITE CASE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion for summary judgment in this dog bite case should not have been granted. The plaintiffs relied on deposition testimony in which defendant acknowledged she had heard about a prior incident in which a boy was nipped by one of her dogs. Defendant’s statement was inadmissible hearsay:

Plaintiffs failed, however, to submit evidence in admissible form regarding the purported prior incident allegedly establishing the existence of the dogs’ vicious propensities. Instead, plaintiffs relied on defendant’s inadmissible hearsay testimony during her deposition about what she had heard from others regarding the purported prior incident, for which she was not present and about which she had no firsthand knowledge … . Such evidence is insufficient to meet plaintiffs’ burden on their motion for summary judgment … .

It is true that, “[i]f a party makes an admission, it is receivable even though knowledge of the fact was derived wholly from hearsay” … . If, however, the party merely admits that he or she heard that an event occurred in the manner stated, the party’s statement is “inadmissible as then it would only . . . amount[ ] to an admission that he [or she] had heard the statement which he [or she] repeated and not to an admission of the facts included in it”… . Here, defendant merely admitted that she had heard that the purported prior incident occurred in the manner stated by others, which is “in no sense an admission of any fact pertinent to the issue, but a mere admission of what [she] had heard without adoption or indorsement. Such evidence is clearly inadmissible” … . Christopher P. v Kathleen M.B., 2019 NY Slip Op 05894, Fourth Dept 7-31-19

 

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