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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

 

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 11-15-19

 

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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

 

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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THE FACT THAT THE DOG WAS A GUARD DOG AND THE NATURE OF THE ATTACK AND INJURIES RAISED A QUESTION OF FACT ABOUT DEFENDANTS’ KNOWLEDGE OF THEIR DOG’S VICIOUS PROPENSITIES IN THIS DOG BITE CASE (SECOND DEPT)

The Second Department determined the evidence of defendants’ dog’s vicious propensities was sufficient to warrant denial of defendants’ motion for summary judgment in this dog bite case:

… [T]he defendants met their prima facie burden of demonstrating their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted on behalf of I.A. through affidavits which demonstrated that the defendants were unaware of any incident where the dog bit any person or animal, or acted aggressively, viciously, or ferociously, or attacked, harmed, or threatened to harm any person or animal … . In opposition, the plaintiffs submitted evidence demonstrating that the dog was kept, at least in part, as a guard dog, that the dog, unprovoked, bit I.A. on the face and would not let go until another boy pried open the dog’s mouth, and that I.A. suffered multiple severe lacerations to his face which required emergency surgery and left him with multiple scars. While the hospital records submitted by the plaintiffs were uncertified (see CPLR 4518[c]), hearsay evidence may be considered in opposition to a motion for summary judgment where, as here, it was not the only evidence upon which opposition to the motion was predicated … . … [T]he evidence was sufficient to raise a triable issue of fact as to whether the defendants knew or should have known that their dog had vicious propensities … . I.A. v Mejia, 2019 NY Slip Op 05757, Second Dept 7-24-19

 

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DEFENDANT’S AGGRAVATED CRUELTY TO ANIMALS CONVICTION AFFIRMED; JUSTIFICATION DEFENSE APPLIES ONLY TO PERSONS, NOT ANIMALS; THE PRESENTENCE INTERVIEW AT THE PROBATION DEPARTMENT IS NOT A CRITICAL STAGE OF THE PROCEEDING REQUIRING THE PRESENCE OF DEFENDANT’S ATTORNEY (THIRD DEPT).

The Third Department affirmed defendant’s conviction of aggravated cruelty to animals (Agriculture and Markets Law 353-a) noting that the justification defense (on which the jury was instructed) applies only to persons, not animals. The defendant unsuccessfully argued the presentence report should have been ignored because his attorney was not present during the interview with the Probation Department:

Defendant contends that the court should have disregarded the report in its entirety and ordered a new one because the Probation Department did not abide by counsel’s request to be present for the presentence interview. “New York’s right to counsel applies to every critical stage of the criminal proceeding” … . However, in light of the nonadversarial nature of a routine presentence interview by a probation officer, courts have held that such an interview does not constitute a critical stage of the proceedings … . Therefore, defendant did not have a right to have counsel present during that interview. In any event, County Court granted defendant’s request to strike the portion of the report containing defendant’s statement related to this crime. People v Brinkley, 2019 NY Slip Op 05728, Third Dept 7-18-19

 

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DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT A SIDEBAR DISCUSSION WITH A PROSPECTIVE JUROR; UPON RETRIAL AN ADULT WITNESS SHOULD NOT TESTIFY WHILE ACCOMPANIED BY A THERAPY DOG (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant did not waive his right to be present when a prospective juror told the judge and attorneys that she was not sure she had completely answered a voir dire question. Defendant was not in the courtroom when the judge asked defense counsel if he wanted his client present and defense counsel said he was “okay with it.” The juror then said that her son was a convicted felon. The Fourth Department also held that upon retrial an adult witness should not be allowed to testify accompanied by a therapy dog:

Initially, we conclude that the situation at issue here constituted a material stage of trial inasmuch as the prospective juror volunteered information about her son’s status as a convicted felon. This information was relevant to a question asked earlier during voir dire: “Have any of you or anyone close to you been a victim of a crime, a witness to a crime, been accused of a crime, or participated in any way in a criminal proceeding?” That question was intended to be relevant to, inter alia, potential bias … . …

We further conclude that, under the circumstances of this case, defendant did not waive his right to be present. It is well established that a defendant has the right to be present at every material stage of a trial, including matters such as questioning prospective jurors regarding bias … . “It is equally clear, however, that such right may be voluntarily waived by a defendant or the defendant’s attorney’ ” and that “a defendant’s waiver in this regard may be either express or implied” … . Here, without defendant being physically present in the courtroom, and with counsel simply stating to the court, “I’m okay with [his absence],” we perceive no basis to conclude that there was either an implicit or explicit waiver. Defendant’s absence from the courtroom when the prospective juror raised the issue of potential bias made it impossible for him to knowingly and voluntarily waive his right to be present … . People v Geddis, 2019 NY Slip Op 04819, Fourth Dept 6-14-19

 

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