Opinion
No. 2022-50672
07-26-2022
Annette Grimes, Plaintiff, v. Brooke Latimer, Defendant.
FOR PLAINTIFF JEREMY SCHIOWITZ, ESQ. ISAACSON, SCHIOWITZ & KORSON, LLP FOR DEFENDANT STEPHANIE K. MCDOUGALL, ESQ. DORF & NELSON LLP
Unpublished Opinion
FOR PLAINTIFF JEREMY SCHIOWITZ, ESQ. ISAACSON, SCHIOWITZ & KORSON, LLP
FOR DEFENDANT STEPHANIE K. MCDOUGALL, ESQ. DORF & NELSON LLP
HON. DAMARIS E. TORRENT, A.J.S.C.
The following papers numbered 1-21 were read on defendant's motion for an order pursuant to CPLR 3212 granting summary judgment, dismissing the complaint with prejudice, and for such other and further relief as this Court deems just and proper.
PAPERS/NUMBERED
Notice of Motion / Affirmation in Support / Statement of Material Facts /
Memorandum of Law / Exhibits 1-16
Stipulation of Adjournment 17
Affirmation in Opposition / Exhibit / Affidavit of Service 18-19
Upon the foregoing papers, this motion is determined as follows:
On March 30, 2020, plaintiff and her dog Luna were attacked by defendant's dog Dexter. Plaintiff alleges defendant was negligent in failing to properly train Dexter, failing to use a proper collar, failing to properly secure the collar and leash on Dexter, improperly restraining him, allowing him to become anxious and dangerous, and allowing him to "run loose" and attack plaintiff and Luna. Plaintiff further alleges that defendant knew or should have known of Dexter's dangerous and vicious.
Defendant argues that Dexter did not have any vicious propensities of which defendant knew or should have known prior to the incident at issue. Plaintiff argues defendant had actual and constructive notice of the dog's vicious propensities. In support of the motion, defendant submits the parties' deposition transcripts, plaintiff's medical records, plaintiff's veterinary records, and the certified police reports from the Town of Pound Ridge for the subject incident. The report contains defendant's statement made to an officer, as follows:
"I spoke to dog owner Brooke Latimer about the incident with Dexter getting loose while she was walking him. Brooke stated that she usually walks Dexter with a pinch/prong collar as he is a hard-to-control (sometimes) Australian Shepherd. The evening of the incident it was raining and she felt there wouldn't be much foot traffic on her road so didn't put the pinch collar on him. The dog got away from her, which is what caused the incident. Brooke tried to locate Mrs. Grimes after she threw Dexter (dog) back into the house to see if she was ok and if her dog was ok but could not locate her."
Defendant also submits her own June 17, 2021 deposition testimony, in which she testified that upon the approach of the plaintiff and Luna, she moved into an adjacent driveway and walked approximately 30 feet from the roadway so as to avoid walking in proximity to them. She stated that Dexter had never charged at or bitten anyone, nor had he ever broken free of his collar. Defendant had Dexter sit and face her. However, Dexter turned, and then immediately wriggled out of his collar and chased after Luna. She claimed that Luna also somehow wrestled free of her collar, and that the two dogs began "scuffling." Although she noticed the plaintiff sitting on the ground, she surmised that "[s]he must have tripped or something." She further stated, "[t]here was maybe growling, noises. They were at each other, 'wrestling' is a good term. They were at each other and that is all I can say. It was just commotion."
Defendant also submitted in support of her motion, the EBT of the plaintiff, in which she attested as follows:
"[T]here was a very blunt and violent force at my legs. And apparently Dexter had gotten loose from the collar and had charged me, knocking me down. I had Dexter on top of me, and Luna trapped to me because she was tethered to my waist. Dexter was aggressively biting and, you know, just aggressively attacking Luna. So I was down, face down. I had Dexter on top of me. I was trying to cover my face because Dexter was very mouthy. She was biting. Luna was crying.
Brooke was near us, but Brooke was just crying, I'm so sorry. And she kept trying to command Dexter, but she couldn't. Dexter was in a frenzy to aggressively attack Luna."
In opposition to defendant's motion, plaintiff's counsel affirmed that after the depositions were completed and the Note of Issue was filed, he received records from the Town of Pound Ridge Police Department in response to a previous FOIL request. These records included a police report dated September 8, 2019, states that at approximately 9:45 AM on that day, a nurse from Norwalk Hospital called and advised them a 3-year-old child was bitten by Dexter and was treated in the ER. The police report is contained in defendant's own submissions on her motion for summary judgment. The narrative of the report states the following:
"FA (Father) states his son was bit in the neck by his aunts (AU) dog, Dexter, a 7 year old Australian Shepard, color brown and white. FA states he was inside when the bite occurred. FA states he and VI (Victim) have been at AU's house from Friday 09/06/2019 with no incidents with the dog. FA and VI will be leaving to go back home to Colorado tomorrow."
The report continues with the reporting officer's interview of the defendant, Brooke Latimer (AU):
"AU states her dog Dexter is not good with other dogs, and has not been around children before. AU reports, she was outside with VI (victim) playing. VI was bent over and the dog ran and bit VI in the neck area. AU reports she grabbed the dog off VI immediately."
In reply, defendant argues that the police report constitutes hearsay.
Summary Judgment Standard
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985][internal citations omitted]; Junger v John V. Dinan Assoc., Inc., 164 A.D.3d 1428 [2d Dept 2018]). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). The evidence must be viewed in a light most favorable to the nonmoving party and it should be given the benefit of all favorable inferences (Gonzalez v Metropolitan Life Ins. Co., 269 A.D.2d 495 [2d Dept 2000]). The Court "must accept as true the evidence presented by the nonmoving party, and the motion must be denied if there is even arguably any doubt as to the existence of a triable issue" (Baker v Briarcliff School Dist., 205 A.D.2d 652, 653 [2d Dept 1994]). If any party other than the moving party is entitled to summary judgment, the court may grant summary judgment without the necessity of a cross motion (CPLR 3212[b]).
On a motion for summary judgment, it is not the court's function to assess credibility, or to engage in the weighing of evidence (Rawls v Simon, 157 A.D.3d 418 [1st Dept 2018]); Scott v Long Is. Power Auth., 294 A.D.2d 348 [2d Dept 2002]). "Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact" (Bykov v Brody, 150 A.D.3d 808, 809 [2d Dept 2017], quoting Kahan v Spira, 88 A.D.3d 964, 966 [2d Dept 2011]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010][internal quotations omitted]; Civil Serv. Empls. Assn. v County of Nassau, 144 A.D.3d 1077 [2d Dept 2016]).
Liability for Attacks by Dogs
It is well settled in New York that "the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities" (Collier v Zambito, 1 N.Y.3d 444, 446 [2004]). A vicious propensity is the propensity to do any act that may endanger the safety of the person or property of others in a given situation (Bloomer v Shauger, 21 N.Y.3d 917 [2013]; Collier, 1 N.Y.3d at 446). Knowledge of vicious propensities may be demonstrated with evidence of "prior acts of a similar kind of which the owner had notice" (Jacobsen v Schwarz, 50 A.D.3d 964, 965 [2d Dept 2008], quoting Collier, 1 N.Y.3d at 446).
"The sole means of recovery of damages for injuries caused by a dog bite or attack is upon a theory of strict liability" (Bukhtiyarova v Cohen, 172 A.D.3d 1153, 1154 [2d Dept 2019]). "Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl or 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" (id. at 1155 [quotation omitted]). This same standard applies where a pet owner fails to confine the animal to the owner's property or fails to restrain the animal from running into another person (Doerr v Goldsmith, 25 N.Y.3d 1114 [2015]). In that sense, a vicious propensity does not mean only that the dog is prone to bite, but rather, "[v]icious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" (Bard v Jahnke, 6 N.Y.3d 592, 596-597 [2006] [internal quotation marks omitted]).
Despite certain allegations made by the plaintiff in her pleadings that appear to be grounded in negligence, it is settled that alleged failure to secure a dog with a leash, or violation of a local leash law, will not form a basis for liability (Petrone v Fernandez, 12 N.Y.3d 546 [2009]).
Defendant fails to establish a prima facie case
Here, defendant fails to establish her prima facie entitlement to judgment as a matter of law.
Defendant argues that the police reports contained in her own submissions are inadmissible hearsay. Uncertified police reports are inadmissible, even those which contain admissions against interest by a party (see CPLR 4518[a]; Yassin v Blackman, 188 A.D.3d 62 [2d Dept 2020]). Conversely, certified police reports are admissible, and to the extent they contain admissions against interest by parties, which constitute an exception to the hearsay rule, those statements are admissible.
Defendant clearly fails to establish a prima facie case. The police reports contained in defendant's submissions document that the March 30, 2020 attack at issue in this action was preceded by Dexter's September 8, 2019 unprovoked attack on a three-year-old child, resulting in a puncture wound to the neck. In connection with the prior attack, the defendant's own admissions indicate that the defendant was aware that Dexter "was not good with other dogs." Further, the defendant's statements implicitly acknowledge that the attack was unprovoked, and further, establish that as of the date of the prior incident, the defendant must have been aware of Dexter's proclivity to charge and bite.
Defendant's admissions which are made in the police reports in connection with the attack which is the subject of the present motion indicate that defendant was aware of Dexter's proclivity to run at other dogs without being provoked. Defendant admitted that Dexter usually wore a pinch collar because he is a "hard-to-control (sometimes) Australian Shepherd." Defendant was thus aware of Dexter's proclivity to attempt to break free of his collar and leash and chase or attack other dogs. Her statement that "there wouldn't be much foot traffic on her road so [she] didn't put the pinch collar on him" indicates that she knew Dexter posed a risk of chasing other dogs, and was uncontrollable, but that she felt on that occasion less vigilance might be exercised.
The Court is not concerned with negligence in the choice of collars, as it is well-established that these cases turn on the presence or absence of vicious propensities, and not on any theory of negligence. The statements are relevant to the extent they establish the defendant's awareness that Dexter would attempt to break loose and chase other dogs.
The police reports establish that the defendant knew or should have known that the dog had a vicious propensity or a proclivity to act in a way that put others at risk of harm (see Kijek v West, 2019 NY Slip Op 30608[U] [Sup Ct, Westchester County 2019]).
To the extent that the defendant's EBT testimony contained denials that Dexter had ever ran at or bitten anyone, in view of the defendant's complete failure to address the admissions contained in the police reports, her EBT testimony must be viewed as raising only feigned issues, and not bona fide issues of fact (Singh v 180 Varick, LLC, 203 A.D.3d 1194, 1196 [2d Dept 2022] [plaintiff's affidavit contradicted his earlier deposition testimony and therefore only raised a feigned issue of fact]; Gooden v EAN Holdings, LLC, 189 A.D.3d 1552, 1552 [2d Dept 2020] [affidavit was a belated attempt to avoid the consequences of earlier admission contained in police accident report, by raising a feigned issue, and was insufficient to raise a triable issue of fact]).
Searching the record
Here, the plaintiff has not cross-moved for summary judgment. However, if any party other than the moving party is entitled to summary judgment, the court may grant summary judgment without the necessity of a cross motion (CPLR 3212[b]).
As noted above, the defendant's own admissions establish the defendant's awareness that Dexter had a proclivity to attack or run at other dogs, and further, that he was given to unprovoked attacks, including biting a child. Moreover, defendant's EBT testimony establishes that the attack on Luna was unprovoked. There is no evidence to counter plaintiff's testimony that she was knocked down by Dexter; defendant's surmise or conjecture that plaintiff spontaneously tripped is mere unsupported speculation, as defendant admitted she did not observe how plaintiff fell to the ground.
The foregoing evidence is not challenged by the defendant in reply, as she merely contests the admissibility of the police reports, which this court finds are clearly admissible. While admissions may be challenged as inaccurately transcribed, or otherwise explained away, defendant has made no effort to do so. We therefore have uncontradicted evidence that defendant was aware of Dexter's aggressive behavior to other dogs, giving rise to the need for a choke collar. Defendant's knowledge that Dexter would become uncontrollable when other dogs were in proximity is further illustrated by the fact that just prior to the incident, the defendant admittedly walked Dexter down a driveway and had Dexter sit and look at her, in an effort to keep Dexter from seeing Luna. Clearly, defendant's own conduct thus evinces defendant's awareness that Dexter might charge at Luna, unprovoked, merely upon seeing Luna. Further, defendant's knowledge of the prior biting incident clearly evinces defendant's awareness of Dexter's aggressive tendencies generally, and his propensity to become uncontrollable and to constitute a danger to others.
In Tessiero v Conrad (186 A.D.2d 330, 330 [3d Dept 1992]), the Third Department opined that, "The fact that an animal may have previously responded by biting does not automatically establish, as a matter of law, either vicious propensities or knowledge thereof (see generally, Lynch v Nacewicz, 126 A.D.2d 708, 709 [holding that evidence as to the severity of injuries to prior victims should not be excluded as it goes to the question of whether a dog has a vicious propensity]; see, Wignes v Bottger, 136 Misc.2d 490, 493)." Curiously, neither of the cases cited by the Third Department in the foregoing quotation involved prior bites or attacks.
Nevertheless, this Court agrees that a prior bite or attack does not automatically establish knowledge of vicious propensities. In Tessiero, the dog was a puppy, and the prior biting incident was characterized as being "nipped, which resulted in a minor break in the skin." Thus, in that case, the prior bite did not establish a vicious propensity. Further, as indicated above, it is often held that "[e]vidence tending to prove that a dog has vicious propensities includes a prior attack" (Hodgson-Romain v Hunter, 72 A.D.3d 741, 741 [2d Dept 2010]). As a prior attack only tends to establish vicious propensities, such an attack may be viewed as generally raising issues of fact.
Clearly, all of the facts and circumstances regarding the prior bite or attack must be considered. In addition, the degree and quality of the evidence concerning the prior attack must be considered. For example, an alleged admission contained in a police report may be more probative than an alleged admission made to an adverse party (see Morse v Colombo, 8 A.D.3d 808, 809 [3d Dept 2004] [finding issue of fact where plaintiff alleged that defendant admitted to her that his dog had previously bitten a family member]).
Here, however, the proof that Dexter engaged in a prior attack, and that the prior attack was both vicious and unprovoked, is established by unassailable proof, including defendant's own admissions as recorded in a police incident report. Moreover, defendant, at the time of the attack, admitted that Dexter is aggressive toward other dogs. Defendant had an opportunity to contest the significance and inferences to be drawn from the prior incident and failed to do so. At her EBT, she falsely testified that she had no knowledge of a prior incident and on the present motion, she makes no effort to deny or contradict her prior admissions.
Upon searching the record, the Court finds that there is sufficient proof in admissible form establishing entitlement to judgment as a matter of law in favor of the plaintiff. The defendant does not deny that Dexter chased after Luna; plaintiff's statement that Dexter knocked her down is uncontradicted; Dexter's propensity to attack other dogs was established by defendant's own admission, as well as other evidence in this record that Dexter would bark aggressively when dogs passed defendant's abode; and Dexter's vicious propensities and the defendant's knowledge of same were established by Dexter's attack on defendant's niece, which defendant has not sought to challenge or explain in any manner.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment is denied; and it is further
ORDERED that upon searching the record plaintiff is granted partial summary judgment on the issue of liability only; and it is further
ORDERED that plaintiff's request for costs associated with this motion is denied; and it is further
ORDERED that all parties are directed to appear on August 11, 2022 at 9:30 a.m. for a Settlement Conference in Courtroom 1201, or as the Court shall otherwise direct; and it is further
ORDERED that within ten (10) days of the date hereof, plaintiff shall serve a copy of this decision and order with notice of entry upon all parties and file proof of service on NYSCEF.
The foregoing constitutes the Decision and Order of the Court.