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Co-Tenants of Dog Owner Can Be Strictly Liable for Harboring a Dog with Vicious Propensities—Co-Tenants’ Motions for Summary Judgment Should Have Been Denied

The Second Department, in a full-fledged opinion by Justice Austin, determined the summary judgment motions by co-tenants of the owner of a dog which injured plaintiff should have been denied.  Although the cotenants did not own the dog, there was a question of fact whether the co-tenants “harbored” the dog.  The court further determined a joint trial including the cotenants was proper. The meaning of “harboring” and the proof requirements for “vicious propensities” were explained:

… [W]e hold that cotenants can be held strictly liable for a vicious attack by dogs owned solely by another cotenant, provided that there is evidence that the cotenants participated in the care of the dogs in their household to a sufficient degree to support a finding that they joined with the dogs’ owner in harboring the animals. We further determine that a unified trial is appropriate in this case. * * *

Generally, the owner of a domestic animal who knows or should know that the animal has a vicious disposition or vicious propensity is strictly liable for an injury caused by the animal … . 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 propensity … . However, no liability can be found against a defendant who neither owned, harbored, nor exercised dominion and control over the animal, and did not permit it to be on or in his or her premises … . * * *

“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'” … . “Once this knowledge is established,” the owner or anyone harboring the animal “faces strict liability” … . “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 owner or harborer of a dog with vicious propensities is not entitled to the benefit of the so-called “one free bite” rule … . Even a dog which has not previously bitten or attacked may subject its owner or harborer to strict liability where its propensities are apparent … .

Knowledge of an animal’s vicious propensities may also be discerned, by a jury, from the nature and result of the attack … . Matthew H. v County of Nassau, 2015 NY Slip Op 05157, 2nd Dept 6-17-15

 

Failure to Pronounce the Amount of Restitution at Sentencing Survives Waiver of Appeal and Requires Vacation of the Sentences and Remittal

The Second Department noted that county court’s failure to pronounce the amount of restitution at sentencing survived waiver of appeal and required vacation of the sentences and remittal for that purpose:

Since the County Court failed to pronounce the sentences of restitution in open court, the sentences must be vacated and the matter remitted to the County Court, Orange County, for resentencing in accordance with CPL 380.20 … . People v Guadalupe, 2015 NY Slip Op 05206, 2nd Dept 6-17-15

 

Defendant-Homeowner’s Providing Plaintiff With a Ladder With Allegedly Worn Rubber Feet Raised a Question of Fact About Defendant’s Liability for the Ladder’s Slipping and Plaintiff’s Fall—Cause of Accident Can Be Proven by Circumstantial Evidence

The Second Department determined Supreme Court should not have granted summary judgment to the defendant homeowner.  Plaintiff was using defendant’s ladder when the ladder slipped and plaintiff fell.  Plaintiff alleged the rubber feet on the ladder were totally destroyed. That allegation created a question of fact whether defendant provided dangerous or defective equipment to the plaintiff which caused plaintiff’s injury. In response to defendant’s argument that plaintiff could not explain the cause of the accident without resort to speculation, the court noted that the cause of an accident can be proven by circumstantial evidence (here the condition of the feet of the ladder and fact that the feet slipped):

“[W]hen a defendant property owner lends allegedly dangerous or defective equipment to a worker that causes injury during its use, the defendant moving for summary judgment must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition” … . While lack of constructive notice can generally be established by evidence demonstrating when the area or condition was last inspected relative to the time of the accident …, the absence of rubber shoes on a ladder is a “visible and apparent defect,” evidence of which may be sufficient to raise a triable issue of fact on the issue of constructive notice … . Here, the defendants satisfied their prima facie burden with evidence that the ladder had been inspected prior to the accident. The defendant Billis Arniotis (hereinafter Billis) testified that, since purchasing the ladder 20 years before the accident, he had used it once per week and had inspected its rubber feet each time. Billis last inspected the ladder one or two weeks before the accident and did not observe any wear at that time. However, the plaintiff testified that he inspected the ladder after the accident and found that its rubber feet were “totally eaten up, worn,” and “destroyed.” This conflicting evidence, coupled with Billis’s testimony that the ladder had not been used between the time of the accident and the plaintiff’s inspection, raised a triable issue of fact.

Contrary to the defendants’ contention, they failed to make a prima facie showing that the plaintiff cannot identify the cause of his fall without engaging in speculation. A plaintiff’s inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence … . Here, Billis’s testimony establishes that he was present at the time of the accident and that he watched the ladder slide down while the plaintiff was on it. Evidence that the ladder’s rubber feet were worn down also is sufficient to permit the inference that this defective condition caused the slippage … . Patrikis v Arniotis, 2015 NY Slip Op 05167, 2nd Dept 6-17-15

 

Liability for a Defective or Dangerous Condition on Real Property Must Be Predicated Upon Ownership, Occupancy, Control, or Special Use of the Property—Here Defendant Demonstrated None of Those Factors Applied

The Second Department, finding that defendant’s motion for summary judgment in a slip and fall case was properly granted, noted that in order for a defendant to be liable for a dangerous or defective condition on real property the liability must be predicated “upon ownership, occupancy, control, or special use of that property …”.  Here no such factors were demonstrated (defendant denied the allegation that it acted as the property manager).  Reynolds v Avon Grove Props., 2015 NY Slip Op 05169, 2nd Dept 6-17-15

 

Sole Proximate Cause of Plaintiffs’ Injuries Should Have Been Determined as a Matter of Law—Complaint Against Non-Negligent Driver (Whose Car Was Pushed into the Pedestrian-Plaintiffs by the Negligent-Driver’s Car) Should Have Been Dismissed

Reversing Supreme Court, the Second Department found that the proximate cause of the accident should have been determined as a matter of law and the complaint against the non-negligent driver should have been dismissed.  The negligent driver violated the Vehicle and Traffic Law by attempting to make a left turn and crossing the lane in which the non-negligent driver was travelling.  The non-negligent driver ‘s car collided with negligent driver’s car and then struck plaintiffs (pedestrians).  Here it was clear that the negligent-driver’s actions were the sole proximate of the plaintiffs’ injury as a matter of law:

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” … . “There can be more than one proximate cause of an accident” …, and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” … . “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” … . Velez v Mandato, 2015 NY Slip Op 05174, 2nd Dept 6-17-15

 

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There Was a Rational Bases for Fire District Board of Commissioners’ Rejection of Petitioner’s Bid to Supply a Radio Dispatch System—Court Cannot Substitute Its Own Judgment for the Board’s

The Second Department determined the respondent board (fire district commissioners) had a rational basis for rejecting petitioner’s bid for a radio dispatch system. As long as a rational basis for an administrative decision exists it must be upheld.  A court may not substitute its own judgment:

General Municipal Law § 103(1) provides that, in awarding any contract in excess of $35,000, public entities must award the contract to “the lowest responsible bidder.” “The central purposes of New York’s competitive bidding statutes are the (1) protection of the public fisc by obtaining the best work at the lowest possible price; and (2) prevention of favoritism, improvidence, fraud and corruption in the awarding of public contracts'”… . Nevertheless, it is a municipality’s right to determine whether a bid meets its specifications, and that determination is entitled to deference if it is supported by “any rational basis” … . Thus, ” a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion'” … . It is the petitioner’s burden to demonstrate that a bid has been wrongly awarded … .

Here, the board identified three reasons for rejecting the petitioner’s bid: (1) the petitioner did not demonstrate that it had a service location within 20 miles of the fire district; (2) the petitioner offered to supply equipment which differed from the bid specifications; and (3) over the life of the contract, the monthly maintenance costs would render the petitioner’s bid more expensive than Eastern’s. Although the petitioner disagrees with the board’s conclusions as to each of these points, any one of them would provide a rational basis for the rejection of the petitioner’s bid. Matter of Hello Alert, Inc. v East Moriches Fire Dist., 2015 NY Slip Op 05189, 2nd Dept 6-17-15

 

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Attorney’s Telling the Court There Was No Reason Sentencing Should Not Go Forward in the Face of Defendant’s Pro Se Motion to Withdraw His Guilty Plea Adversely Affected Defendant’s Right to Counsel

The Second Department ordered that a hearing be held on defendant’s motion to withdraw his guilty plea and that another lawyer be assigned. When defendant made his pro se motion to withdraw his plea, his attorney told the court there was no reason sentencing should not go forward. The attorney’s taking a position adverse to the defendant’s adversely affected the defendant’s right to counsel:

The defendant’s right to counsel was adversely affected when his attorney took a position adverse to his … . The County Court should have assigned a different attorney to represent the defendant before it determined the defendant’s motion to withdraw his plea of guilty … . Accordingly, the matter must be remitted to the County Court, Westchester County, for a hearing on the defendant’s motion to withdraw his plea of guilty, for which the defendant shall be appointed new counsel, and for a new determination of the motion thereafter. People v King, 2015 NY Slip Op 05209, 2nd Dept 6-17-15

 

Best Interests of Child Justified Denial of Petition to Vacate Acknowledgment of Paternity (Equitable Estoppel)

The Second Department determined Family Court properly denied the petition to vacate an acknowledgment of paternity.  Petitioner demonstrated his signing of the acknowledgment was based upon a mistake of fact. Although petitioner was not the child’s biological father, the best interests of the child, with whom petitioner had lived from birth for six years, mandated denial of the petition. The court explained the relevant law:

A party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must prove that it was signed by reason of fraud, duress, or material mistake of fact (see Family Ct Act § 516-a[b][ii]). If the petitioner meets this burden, the court is required to conduct a further inquiry to determine whether the petitioner should be estopped, in accordance with the child’s best interests, from challenging paternity … . * * *

The Family Court providently exercised its discretion in concluding that the petitioner should be equitably estopped from denying paternity. The purpose of equitable estoppel “is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position” … . Thus, “a man who has held himself out to be the father of a child, so that a parent-child relationship developed between the two, may be estopped from denying paternity” … . “The doctrine in this way protects the status interests of a child in an already recognized and operative parent-child relationship” … . The paramount concern in such cases “has been and continues to be the best interests of the child” … .

Here, the hearing evidence demonstrated that the petitioner lived with the child from the time of her birth in March 2005, until 2011. After the parties separated in 2011, the petitioner continued to visit with the child approximately one to two times per week. According to the petitioner, the child is free to visit with him whenever she wants. Although the child knows that the petitioner is not her biological father, she does not refer to or think of anyone else as her father. The child has a strong relationship with the petitioner and wants to spend more time with him and his son, whom she regards as her brother. Accordingly, the evidence established that, up to the time of the hearing, there had been a recognized and operative parent-child relationship between the petitioner and the child in existence all of the child’s life … . Matter of Luis Hugo O. v Paola O., 2015 NY Slip Op 05195, 2nd Dept 6-17-15

 

Supreme Court Should Have Held a Hearing to Determine Whether Attorneys Were Entitled to the Fees Sought by Them—Plaintiff Had Already Paid the Attorneys Nearly the Amount the Case Ultimately Settled For—the Attorneys, Who Had Been Discharged Without Cause, Sought 40% of the Settlement Pursuant to a Contingency Agreement Which Was Entered In Anticipation of Trial

The Second Department reversed Supreme Court and ordered a hearing to determine whether respondents-attorneys had received all the fees they were entitled to.  The attorneys had been paid nearly $54,000 by the plaintiff.  Then plaintiff then entered a 40% contingency arrangement prior to trial. The case ultimately settled for $57,500 and plaintiff discharged the attorneys:

An attorney of record who is discharged without cause possesses a charging lien pursuant to Judiciary Law § 475 which constitutes an equitable ownership of the cause of action an attaches to any recovery … . Additionally, “[i]f a client discharges an attorney without cause, the attorney possesses a common-law retaining lien on the client’s file in his or her possession and is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered, regardless of whether that amount is more or less than the amount provided in the contract or retainer agreement” … . The retaining lien “is extinguished only when the court, which controls the functioning of the lien, orders turnover of the file in exchange for payment of the lawyer’s fee or the posting of an adequate security therefor following a hearing” … . “Absent exigent circumstances, the attorney may generally not be compelled to surrender the papers and files until an expedited hearing has been held to ascertain the amount of the fees or reimbursement to which he or she may be entitled” … . A court may summarily determine that an attorney is charging excessive fees, limit those fees, and discharge the attorney’s liens … .

Here, the Supreme Court erred in denying the plaintiff’s cross motion without holding a hearing to ascertain the amount of fees or reimbursement to which the respondents may be entitled … . The gravamen of the plaintiff’s cross motion was that the charging lien and retaining lien should be vacated because he had already paid the respondents a total of $53,763.99 in legal fees and he did not owe the respondents any additional legal fees. In contrast, the respondents sought to collect a contingency fee of $23,000, which was the full 40% of the $57,500 recovery, without crediting the plaintiff with the $5,000 which should have been credited against the contingency fee pursuant to their agreement. Thus, it appears that the respondents were seeking excessive fees.

Under these circumstances, we reverse the order insofar as appealed from and remit the matter to the Supreme Court, Westchester County, for a hearing on the issue of whether the respondents have received all of the fees owed to them for the reasonable value of their services … . D’Ambrosio v Racanelli, 2015 NY Slip Op 05149, 2nd Dept 6-17-15

 

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