Opinion
Index No. 15-611901 CAL. No. 17-02533OT Mot. Seq. Nos. 001-MG 002-MG; CASEDISP
10-11-2018
JOSEPHINE LAWLOR, Plaintiff, v. DIANE SCHWARTZ JOSEPH KLATZSKO and JOANNE KLATZSKO, Defendants.
LAW OFFICE OF THOMAS TONA, P.C .. Attorney for Plaintiff LAW OFFICES OF DANIEL A. ZAHN, P.C. Attorney for Klatzsko Defendants JEFFREY T. BARONE, ESQ. Attorney for Defendant Schwartz
Unpublished Opinion
MOTION DATE 4-26-18 (001 & 002)
ADJ. DATE 5-16-18
LAW OFFICE OF THOMAS TONA, P.C .. Attorney for Plaintiff
LAW OFFICES OF DANIEL A. ZAHN, P.C. Attorney for Klatzsko Defendants
JEFFREY T. BARONE, ESQ. Attorney for Defendant Schwartz
PRESENT: JOSEPH C. PASTORESSA Justice
HON. JOSEPH C. PASTORESSA, J.S.C.
Upon the following papers numbered 1 to 68 read on these motions for summary judgment: Notice of Motion/Order to Show Cause and supporting papers 1-33; Notice of Cross Motion and supporting papers 34-49; Answering Affidavits and supporting papers 50 - 60: 61-62; Replying Affidavits and supporting papers 63 - 66: 67 - 68; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant Diane Schwartz and the motion by defendants Joseph Klatzko and Joanna Klatzko are consolidated for purposes of this determination; and it is further
ORDERED that the motion by defendant Diane Schwartz for summary judgment dismissing the complaint and cross claims against her is granted; and it is further
ORDERED that the cross motion by defendants Joseph Klatzko and Joanna Klatzko for. summary judgment dismissing the complaint and cross claims against them is granted.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff Josephine Lawlor on August 31,2015, when she was bitten by a dog owned by defendants Joseph Klatzko and Joanne Klatzko, improperly sued herein as Joseph Klatzsko and Joanna Klatzsko. The attack occurred when plaintiff entered the house of the premises owned by defendant Diane Schwartz, where the Klatzko defendants resided, located in Mastic Beach, New York. The plaintiff alleges that defendants were negligent in, among other things, permitting a dangerous dog on their property.
Schwartz now moves for summary judgment dismissing the complaint on the ground that she had no notice the dog had vicious propensities. Schwartz submits, in support of the motion, copies of the pleadings, the bill of particulars, the note of issue, and the transcripts of the deposition testimony of the parties. The Klatzko defendants also move for summary judgment dismissing the complaint of the ground that they had no notice the dog had vicious propensities. They submit, in support of the motion, copies of the pleadings, the bill of particulars, and the transcripts of their deposition testimony.
The Court notes that plaintiffs purported cross motion was considered only as opposition to defendants' motions, as she did not file and serve a notice of cross motion (see CPLR2215). In opposition to defendants' motions, plaintiff argues that the dog had vicious propensities, and that defendants knew or should have known of those propensities. Plaintiff submits, in opposition, photographs, the affidavit of Lynda Loudon Sheppard, D.V.M., a digital versatile disc containing video footage and an affidavit of authentication, and the transcripts of the deposition testimony of the Klatzko defendants, plaintiff, and Donald Lawlor.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require atrial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 N.Y.2d 320; Zuckerman v City of New York, 49 N.Y.2d 557).
"[C]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner's knowledge of the animal's vicious propensities, not on theories of common-law negligence" (Morse v Colombo, 31 A.D.3d 916, 917; see Claps v Animal Haven, Inc., 34 A.D.3d 715). "To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities" (Christian v Petco Animal Supplies Store, Inc., 54 A.D.3d 707, 707-708; see Petrone v Fernandez, 12 N.Y.3d 546; Bard v Jahnke, 6 NY3d 592; Collier v Zambito, 1 N.Y.3d 444). "Vicious propensities include the propensity to do any act that might endanger the safety of the person and property of others" (see Lillo-Arouca v Masoud, 164 D3d 646). "Evidence tending to demonstrate a doe's vicious nonensities includes evidence of a prior attack, the doe's tendency to erowl. snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm" (Curbelo v Walker, 81 A.D.3d 772, 773; see Bard v Jahnke, 6 N.Y.3d 592; Collier v Zambito, 1 N.Y.3d 444; Xin Kai Li v Miller, 150 A.D.3d 1051; Carroll v Kontarinis, 150 A.D.3d 960). "A similar act by the dog, such as a prior biting incident, imputes knowledge of vicious propensity" (Morse v Colombo, 8 A.D.3d 808, 808). Owners or harborers of a dog with vicious propensities are not entitled to the benefit of the so-called "one free bite" rule (see Matthew H. v County of Nassau, 131 A.D.3d 135). As such, even dogs which have not previously bitten or attacked may subject its owners or harborers to strict liability where its propensities are apparent (see Collier v Zambito, 1 N.Y.3d 444; Matthew H. v County of Nassau, 131 A.D.3d 135). Knowledge of an animal's vicious propensities may also be discerned from the nature and result of the attack (see Matthew H. v County of Nassau, 131 A.D.3d 135; Francis v Becker, 50 A.D.3d 1507; Lynch v Nacewicz, 126 A.D.2d 708).
The Klatzko defendants made a prima facie showing of their entitlement to summary judgment through submissions that the dog did not have vicious propensities, and that, even if it did, they had no knowledge of such vicious propensities (see Lillo-Arouca v Masoud, 163 A.D.3d 646; Carroll v Kontarinis, 150 A.D.3d 960; Bueno v Seecharan, 136 A.D.3d 702; Curbelo v Walker, 81 A.D.3d 772; Christian v Petco Animal Supplies Store, Inc., 54 A.D.3d 707). Joanna Klatzko testified that the subject dog had never been muzzled before the incident and never jumped on people. Joseph Klatzko testified that the dog never bit or tried to bite anyone before the incident. Mr. Klatzko also testified that no one complained about the dog prior to the incident.
The burden now shifts to the non-moving parties to raise a triable issue of fact as to whether the dog had vicious propensities and whether defendants had knowledge of the dog's vicious propensities (see Alvarez v Prospect Hosp., supra). Contrary to the assertions by plaintiffs counsel, evidence of a "beware of dog[s]" sign is insufficient to raise a triable issue of fact with respect to vicious propensity (see Vallejo v Ebert, 120 A.D.2d 737; Palumbo v Nikirk, 59 A.D.3d 691). Evidence that the dog barked when strangers approached the front door is also insufficient to raise a triable issue of fact (see Ioveno v Schwartz, 139 A.D.3d 1012).
To recover against a landlord, the plaintiff must prove that the defendant"(1) had notice that the dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and (3) had sufficient control of the premises to allow the landlord to remove or confine the dog" (Kraycer v Fowler St., LLC, 147A.D.3d 1038, 1039, quoting Sarno v Kelly, 78 A.D.3d 1157, ¶51;Kim v Hong, 143 A.D.3d 804; Velez v Andrejka, 126 A.D.3d 685). Defendant Schwartz made a prima facie showing of her entitlement to summary judgment through submissions that she had no knowledge of the dog's vicious propensities (see Curbelo v Walker, 81 A.D.3d 772; Sarno v Kelly, 78 A.D.3d 1157; Christian v Petco Animal Supplies Store, Inc., 54 A.D.3d 707; Lebron v. New York City Housing Authority, 268 A.D.2d 563). Schwartz testified that she was aware of the dog's presence on the property, and that she was not aware of the dog's vicious propensities before the incident. She also testified that she never received complaints about the dog or knew the dog to have issues with people. Furthermore, Schwartz stated that the dog had never bitten anyone previous to the subject incident.
Schwartz having met her initial burden on the motion, the burden shifted to the nonmoving parties to raise a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557). Plaintiff argues that
Schwartz was not a landlord, because there was no written lease, she is the sister of Joanna Klatzko, and Joseph Klatzko performed maintenance on the premises. While Joseph Klatzko testified that he paid $ 1,900 in monthly rent, fixed fence panels, and installed gates, plaintiff failed to submit evidence that such maintenance was performed in exchange for a reduced rent that would establish Schwartz's vicarious liability (cf. Wilson v Livingston, 305 A.D.2d 585). Plaintiff failed to demonstrate that Schwartz knew or should have known of the dog's vicious propensities (see Lebron v. New York City Housing Authority, 268 A.D.2d 563).
Accordingly, the motions by defendants for summary judgment dismissing the complaint are granted.
X FINAL DISPOSITION__ NON-FINAL DISPOSITION