Friday, May 27, 2011

Dog Bite Law

In New York, if a person is attacked and sustained injuries from a dog (or any domestic animal), then a claim for “absolute liability” (also known as “strict liability”) must be brought.  (“Absolute liability” is defined as the legal responsibility for damages even if the defendant was not at fault or negligent.)  A negligence claim cannot be brought in a dog bite scenario.  See Collier v. Zambito, 775 N.Y.S.2d 205 (2004).  However, one will only be successful in bringing an absolute liability claim if he or she alleges and proves that the dog exhibited "vicious propensities" prior to the attack, and that the dog's owner knew or should have known of the dog’s vicious propensities prior to the attack.  Id.  In regards to the above, the following should be noted.  

The mere fact that a dog was kept enclosed or chained or that a dog previously barked at people is not sufficient to establish that it had vicious propensities.  Id.  Also, “Beware of Dog” signs, standing alone, are insufficient as well.  See Altmann vs Emigrant Savings Bank, 670 N.Y.S.2d 859 (2d Dept. 1998).  More has to be shown to constitute vicious propensities, such as 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, or other evidence of the dog's proclivity to act in a way that puts others at risk of harm.  See Bard v. Jahnke, 815 N.Y.S.2d 16 (2006).  This law applies regardless of what type of breed of dog is involved (see Snyder v. National Parking Systems, 2004 NY Slip Op 51311). 

One of the most common ways to show that a dog has exhibited vicious propensities is to prove that it bit someone before (hence why the law in this area is loosely referred to as "the dog bite law").  Another way is to have a person familiar with the dog testify to its vicious propensities (such as a member of the household or a neighbor).
Salvatore R. Marino, Esq.

Wednesday, May 18, 2011

Intestate Distribution of an Estate

There are many important reasons why a person should have a will, but there is one reason in particular that stands out – the laws of intestacy.  If a person does not execute a will when he or she is alive, or if a will was executed but was found by a court after the person's death to be invalid for any reason, then that person’s estate will be distributed pursuant to the laws of intestacy.

            The New York Estate, Powers, and Trusts Law (the EPTL), Article Four, Section 4-1.1 sets forth intestate distribution:
(1)   If survived by a spouse and issue (“issue” are descendants in any degree from a common ancestor), then $50,000 plus one half of the residue goes to the surviving spouse, and the balance of the estate goes to the issue by representation.
(2)   If survived by a spouse and no issue, then the whole goes to the spouse.
(3)   If survived by the issue and no spouse, then the whole goes to the issue by representation.
(4)   If survived by one or both parents, and no spouse and no issue, then the whole goes to the surviving parent or parents.
(5)   If survived by the issue of parents (includes siblings), and no spouse, issue or parent, then the whole goes to the issue of the parents by representation.  

The EPTL also sets forth intestate distribution if survived by grandparents and grandchildren and great-grandchildren, which is in Article Four as well.

Salvatore R. Marino, Esq.

Monday, May 16, 2011

Affirmation Lacking in Products Liability Defense

In Chow v. Reckitt & Colman, Inc., 17 N.Y.3d 29 (2011), a recent decision from the highest state court in New York, the New York Court of Appeals, a defense attorney's affirmation in support of its defense was held to be insufficient to satisfy its summary judgment burden.  In the case, the plaintiff sued entities responsible for the manufacture, distribution and package design of a product sold under the brand name “Lewis Red Devil Lye” (“RDL”).  RDL, commonly referred to as "lye," is 100% sodium hydroxide and is commonly used to clear clogged drains.  The plaintiff was injured when he was using RDL to clear a clogged floor drain of the Manhattan restaurant where he worked.  The defendants argued that the plaintiff mishandled the RDL product.

The Court denied the defendants motion, stating the following: “in support of their motion here…defendants state only, in effect, that lye is what it is, that everyone knows lye is dangerous…while it is true that lye is dangerous and that [RDL] is lye, a mere statement in an attorney’s affirmation in support of a motion for summary judgment to that effect does not result in a shift of the burden to plaintiff to then explain how RDL could be made safer…defendants were required to demonstrate that RDL was reasonably safe for its intended us, but they offered no such evidence.”
Salvatore R. Marino, Esq.

Saturday, May 14, 2011

No Prior Written Notice Causes Reversal

In Vardoulias v. County of Nassau, 923 N.Y.S.2d 577 (2d Dept. 2011), the plaintiff sued the County of Nassau after tripping, falling and sustaining injury on a Nassau County sidewalk.  The plaintiff claimed that a dangerously defective condition on the sidewalk caused the accident and injury.  The plaintiff argued that the County received prior written notice of the defect because the Nassau County Recreation and Parks Department received prior written notice. 

According to the Nassau County Administrative Code, Section 12-4.0[e]: “no civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk ... unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk [is given] ... [and] such written notice shall specify the particular place and nature of such and that ... notice required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney.” 

At the completion of the plaintiff’s case the defense moved for judgment as of matter of law in its favor because the County never received notice in accordance with Section 12-4.0(e).  The trial court judge denied the motion, but on appeal the motion was granted by the Appellate Division.  The Appellate Division agreed with the County in that prior written notice to the Parks and Recreation Department was inadequate because it was not in accordance with the Nassau County Administrative Code requirements, which specifically states that the Office of the County Attorney must be given notice.  According to the Court, prior written notice provisions are always strictly construed (see Gorman v. Town of Huntington, 2009 NY Slip Op 02648), and absent prior written notice of a dangerous or defective condition where a written notice statute is in effect a municipality cannot be held liable for injuries (see Amabile v. City of Buffalo, 93 N.Y.2d 471 [1999]). 

Salvatore R. Marino, Esq.