Growling Not Enough to Show "Vicious Propensities" in Dog Bite Case

            In Gervais v. Laino (111537/10, NYLJ 1202636603421, at 1, App. Div., 1st, decided December 31, 2013), the Appellate Division, First Department reversed a lower court's order denying a defendant's motion for summary judgment in a dog bite case.  The relevant facts are as follows: the plaintiff brought a lawsuit against a dog owner (the defendant) after she was allegedly scratched or bitten in the face by the dog; the plaintiff stated that she was walking in Central Park when she saw the defendant's dog, whose hind paw was caught in a fence, wailing in pain; the plaintiff claimed that she was leaning over the dog and deciding what to do, when the dog lunged at her and scratched or bit her face (however, both the hospital records and police report state that plaintiff was attempting to free the dog); the defendant dog owner, who was present and rushing over to her dog, stated that the plaintiff wrapped her arms around the dog's head and neck.

            In support of the motion for summary judgment, the defendant submitted evidence of her dog's gentle disposition and her lack of knowledge of any vicious propensities, including four affidavits from neighbors and other dog owners who know the defendant's dog, as well as test results indicating that the dog was awarded the American Kennel Club's Good Citizen certification.  In opposition, the plaintiff submitted deposition testimony from the defendant's neighbor who stated that, prior to this incident, the neighbor's two dogs and defendant's dog, had a history of growling at each other and had been involved in two scuffles, one where one of the neighbor's dogs bit defendant's dog and one or possibly two where defendant's dog was the aggressor but she retreated when the neighbor reprimanded her.  The neighbor further testified that she complained to defendant about her dog's behavior, but acknowledged that defendant's dog was not aggressive toward her and had never bitten or hurt her dogs.

            After the discovery process, the defendant made a motion for summary judgment, seeking to dismiss the plaintiff's lawsuit on the theory that no triable issues of fact exist for trial.  The trial court denied the defendant's motion, and the plaintiff appealed.  On appeal, the Appellate Division reversed the trial court decision, stating the following: "[i]n order to establish liability, there must be some evidence that the dog demonstrated vicious propensities prior to the incident...[t]he only case with facts at all comparable to those here is Rosenbaum v. Rauer, 80 AD3d 686 (2nd Dept 2011), in which the plaintiff was also injured when trying to assist a dog who was caught in a fence.  In Rosenbaum, however, there was evidence that the defendants' dog 'had frequently…growled, shown its teeth, and snapped at the plaintiffs'...[a]ccordingly, the Second Department found that there was a triable issue of fact as to the animal's vicious propensities when it bit the injured plaintiff." 

            The Court then held the following: "[n]o court has found that a dog's growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog's vicious propensities...[h]ere, the evidence, which establishes only that defendant's dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog's vicious propensities.  Accordingly, defendant is entitled to summary judgment dismissing the complaint."

Salvatore R. Marino, Esq.

New Trial on Damages Ordered

            In Killon v. Parrotta (51539, NYLJ 1202635187065, at 1, Sup., Warren, decided December 23, 2013), an action for battery was commenced after the plaintiff was allegedly attacked by the defendant with a baseball bat, resulting in serious injuries to the plaintiff's face that required substantial medical and surgical treatment.  A trial was held in this case, and the jury awarded damages to the plaintiff in the amount of $200,000.00 for past medical expenses, no damages for past pain and suffering, and $25,000.00 for future pain and suffering.  After the verdict, the plaintiff then moved pursuant to CPLR 4404(a) for an order setting aside the verdict of the jury as to the $25,000.00 award for future pain and suffering and their award of no damages for past pain and suffering. The plaintiff argued that the verdict, in those two instances, was contrary to the weight of the evidence and inadequate as a matter of law, materially deviating from what is considered reasonable compensation for the pain and suffering experienced and to be experienced in the future (the plaintiff does not contest the jury's verdict in the amount of $200,000.00 for medical expenses though).

The Court noted the following with respect to the applicable law: "[t]he standard on a motion to set aside the jury's verdict as against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence...[f]urthermore, the amount of damages to be awarded for pain and suffering is primarily a question of fact and considerable deference should be accorded to the interpretation of the evidence by the jury...[a]s frequently observed, awards for pain and suffering cannot be precisely quantified and their reasonableness is measured by reviewing comparable cases, and analyzing such factors as 'the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury'...[t]he challenge on a motion such as this is the inherently subjective nature of non-economic awards which will not produce mathematically precise results and the shortage of 'comparable cases' entombed in memorandum opinions with limited facts - a task which 'is easier said than done.'"

The Court ultimately held that the jury's award of no damages for past pain and suffering could not have been reached on any fair interpretation of the evidence, and that the jury's future pain and suffering award without setting forth the period of years of which such amounts were intended to provide compensation was problematic.  As a result, the Court ordered a new trial on the issue of damages for the plaintiff's past and future pain and suffering.

Salvatore R. Marino, Esq.

Family Member Not "Licensee"

            A recent Nassau County District Court decision highlights the definition of a "licensee" with respect to summary eviction proceedings against family members.  In Kakwani v. Kakwani (2013 NY Slip Op 23200), the petitioner (the owner of a premises) brought a summary eviction proceeding against a family member who was a tenant of the premises pursuant to RPAPL Section 713(7).  The petitioner alleged that the tenant was a "licensee" whose license to reside at the premises (which was the respondent's marital residence) has been revoked, thereby allowing service of a 10 day notice to quit before an eviction proceeding was brought (as opposed to a 30 day notice that's required for other types of summary eviction proceedings).  The tenant's defense was that she is a "family member" who cannot be evicted in a summary proceeding.

Although the statutory law does not indicate whether a "licensee" includes family members, the Court noted that case law does.  According to the Court, case law holds that a family member is not a "licensee" for purposes of a RPAPL Section 713(7) action, and that an ejectment action commenced in the Supreme Court (as opposed to a summary eviction proceeding) is the proper avenue in such situations involving family members (it should be noted that an ejectment action is generally more time consuming than a summary eviction proceeding).

The Court stated the following: "These cases seemingly show that occupancy due to familial relationship does not constitute a licensee agreement as intended by RPAPL 713 (7).  There are various forms of family relationships ranging from spousal, parent and child, and even nonmarried couples. They are unique and thus should not be terminated through summary proceedings, which tend to be speedy.  Instead, more appropriate avenues must be taken such as ejectment actions or proceedings in Family Court....All this court holds is that a family member may not be summarily evicted from the family home with a 10-day notice to quit.  A more deliberate process is required and is readily available."

Salvatore R. Marino, Esq.

Stepfather Not “Immediate Family” for “Zone-of-Danger” Claim

            A recent Appellate Division, Second Department decision highlights the law for bringing an emotional distress claim caused by witnessing a family member's serious injury or death as a result of another person's negligent act.  In Thompson v. Dhaiti, et al (2^nd Dept 2013) (Index No. 24951/09), the plaintiff, the decedent’s stepdaughter, was standing in front of a barbershop when cars driven by defendants Dhaiti and Pacific collided.  One of the vehicles jumped onto the sidewalk, struck the decedent, who had been walking on the sidewalk, and crashed through the front window of the barbershop, pushing the decedent through the window and pinning him against a chair in the shop.  The decedent later died of his injuries.  The plaintiff then brought a lawsuit against the defendants, seeking damages for emotional distress caused by having witnessed the decedent’s death while being in the “zone-of-danger.”

            The Appellate Division ultimately held that the plaintiff was not entitled to recover damages under this claim, and as a result her lawsuit was dismissed (by way of defendants’ motion for summary judgment) as the decedent was not the plaintiff’s “immediate family.”  The Court notes that although the decedent was plaintiff’s stepfather, and the plaintiff lived with him since she was four years old and he had financially supported her for the majority of her life and acted as her father, he was not her biological father and therefore not considered to be her "immediate family" member (citing Bovsun v. Sanperi, 61 NY2d 219 and Trombetta v. Conkling, 82 NY2d 549).  The Court stated the following: “There is no blood relationship, even if the plaintiff and the decedent had the same quality of relationship that a parent has with his or her biological child.  In light of the strong public policy limiting liability under the zone-of-danger rule and favoring an objectively defined class of individuals who fall within ‘immediate family’ for purposes such as liability, we concluded that stepchildren are not immediate family members.  Thus, the Supreme Court properly granted the motion of the moving defendants for summary judgment dismissing the complaint insofar as asserted by [plaintiff] against each of them.” 

Salvatore R. Marino, Esq.

Supplemental Vs. Amended Bill of Particulars

           A recent Appellate Division, Second Department decision highlights the difference between an amended and supplemental bill of particulars in a personal injury case.  (A bill of particulars is a written statement that amplifies the allegations or defenses in a lawsuit.)  In Erickson v. Cross Ready Mix, Inc., et al. (2^nd Dept. 2012, Index No. 11947/05), the plaintiff allegedly was injured on a construction site when he was struck by a swinging chute on the back of a cement truck.  In his initial response to a demand for a bill of particulars, the plaintiff claimed that his medical treatment would include “lumbar spinal fusion surgery.”  After the surgery was performed, the plaintiff made a motion to amend his bill of particulars to include, among other things, further injuries which he allegedly sustained during the surgery.

            The Court dismissed plaintiff’s motion as it was unnecessary, holding the following: “pursuant to CPLR 3043(b), a plaintiff in a personal injury action may serve a supplemental bill of particulars containing ‘continuing special damages and disabilities,’ without leave of the court, if it alleges ‘no new cause of action . . . or new injury.’  Where, as here, the plaintiff seeks to allege continuing consequences of the injuries suffered and described in previous bills of particulars, rather than new and unrelated injuries, the contested bill of particulars is a supplemental bill of particulars rather than an amended bill of particulars.  Since the document entitled 'Amended Response To Defendant’s Demand For A Verified Bill Of Particulars,' which we deem to be a supplemental bill of particulars, was served more than 30 days prior to trial, leave of court was not required (see CPLR 3043[b]).  Accordingly, the plaintiff’s motion must be denied as unnecessary."

Salvatore R. Marino, Esq.

Defective Gate Claim Against City Dismissed

           In Silvia Durri v. City of New York, et al. (2nd Dept 2012, Index No. 25767/08), the facts are as follows: as the plaintiff was attempting to open a metal gate at the defendants’ parking lot, the hinges of the gate came apart; although the plaintiff tried to hold up the gate with her hands, she was unable to do so, and the gate ultimately fell on top of her, causing her to fall and allegedly sustain injuries.  Thereafter the plaintiff sued the City of New York and other parties alleged to have been responsible for the defective gate.  After discovery was completed, the defendants made a motion for summary judgment, which was granted by the trial court and affirmed by the Appellate Division, Second Department.

The Appellate Division held the following: “[the defendants established] that they did not create or have actual or constructive notice of any hazardous condition...the defendants’ custodian testified at a deposition that he inspected the gate twice a week, never observed any defects in the gate, and never received any complaints about the gate prior to the accident.  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants had actual or constructive notice of the alleged hazardous condition.  [Additionally,] contrary to the plaintiff’s contention, the doctrine of res ipsa loquitur is not applicable here.  The evidence did not show that the defendants were in exclusive control of the gate.”

Salvatore R. Marino, Esq.

Notice of Claim Not Required for Equitable Action

           In Howard Johnson v. City of Peekskill (2d Dept. 2012, Index No. 009-09430, decided on January 24, 2012), the plaintiff commenced a civil action against the City of Peekskill seeking an injunction to compel the City to issue him a building permit for a two-family house and for money damages, both compensatory and punitive, arising from the City’s failure to issue the permit.  The Supreme Court granted the City’s motion to dismiss the complaint for failure to serve a timely notice of claim pursuant to New York General Municipal Law §§ 50-e and 50-i, and denied the plaintiff’s cross-motion for leave to serve a late notice of claim.

            On appeal, the Appellate Division, Second Department reversed the lower court’s decision, holding that a notice of claim did not have to be served because a tort action was not commenced.  The Court stated the following: “General Municipal Law § 50-e mandates that a notice of claim must be served as a condition precedent to the commencement of a tort action against a municipality…[however,] the plaintiff’s claim is not subject to the notice of claim statute because his claim is primarily equitable in nature…although the complaint also demands compensatory and punitive damages for the alleged wrongful act committed by the City, compliance with the notice of claim requirements of section 50-e is not necessary where, as here, the action is brought in equity to restrain a continuing act and where a demand for money damages is merely incidental to the requested injunctive relief.”

Salvatore R. Marino, Esq.