Opinion
Index 033953/2018
04-09-2021
IRMA SANCHEZ, Plaintiff, v. MICHAEL BIRD and MARSHA BIRD, Defendant. Motion Sequence No. 2
ROBERT M. BERLINER JUDGE,
Unpublished Opinion
HON. ROBERT M. BERLINER, J.S.C.
DECISION AND ORDER
ROBERT M. BERLINER JUDGE,
The following papers, numbered 1 to 4, were read on Defendants' motion for summary judgment dismissing Plaintiffs Complaint:
Notice of Motion/Affirmation in Support/Exhibits (A-F)................................................1-2
Affirmation in Opposition/..................................................................................................3
Reply Affirmation................................................................................................................4
Upon the foregoing papers, it is ORDERED that this motion is disposed of as follows:
This action commences out of a tale of two dogs' playdate when Plaintiff allegedly sustained injuries from Defendants' dog knocking her down. On August 24, 2017, Plaintiff brought over her dog. Patron, for a playdate with Defendants' dog, Gismo, at Defendants' residence. Plaintiff alleges that Defendants' dog ran up to her and knocked her down during the playdate. She also alleges that Defendants knew of their dog's propensity to knock down individuals. On July 11, 2018, Plaintiff filed her Complaint seeking damages against Defendants for the alleged injuries she sustained when their dog knocked her down.
Now, before the Court is Defendants' motion for summary judgment dismissing Plaintiffs Complaint. Defendants allege that Gizmo does not have any vicious propensities. In support of their motion. Defendants contend that during the incident in question, their dog knocked Plaintiff down to the ground as a result of playing with Plaintiffs dog in the yard. As such, according to Defendants, they cannot be liable for Gizmo's normal dog behavior. They also allege that Gizmo does not have any vicious propensities as evidenced by both Plaintiff and Defendant Michael Bird's examinations before trial. They testified that neither of them had seen or were aware of Gizmo biting, growling, or showing his teeth toward anyone. Defendants highlight the fact that Plaintiff testified that when their dogs played with each other, they did so in a playful manner and Gizmo did not act aggressively toward Patron. Defendants allege that the dogs had playdates frequently, at least one to two times per week prior to the incident.
In opposition, Plaintiff refutes Defendants contentions and alleges that there are genuine issues of material fact. Plaintiff alleges that Gizmo viciously knocked her dovm, and did not do so while playing with Patron because Patron was not in the area when she fell. Additionally, Plaintiff testified that about six months to a year prior to the August 24, 2017 incident, Gizmo knocked her down during a playdate between the two dogs at her residence. She testified that during this incident Gizmo went away from Patron to specifically go to her and then proceeded to knock her down. Plaintiff also argues that Defendant Michael Bird testified that Gizmo had previously knocked him down while Gizmo was playing with another neighbor's dog. Therefore, according to Plaintiff, this constitutes evidence of Gizmo's vicious propensity to knock down individuals.
In reply, Defendants allege that Plaintiff failed to raise a triable issue of fact. They allege that Defendant Michael Bird testified that the first incident where Plaintiff fell was due to both dogs knocking her down as they were both running at high speeds. Defendants continue to contend that during the August 24, 2017 incident, Gizmo was playing with Patron and did not intentionally attack Plaintiff.
"As we have stated frequently, 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 demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986][internal citations omitted]. "Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a material and triable issue of fact." Anyanwu v. Johnson, 276 A.D.2d 572 [2d Dept 2000]. Issue finding, not issue determination, is the key to summary judgment. Krupp v. Aetna Casualty Co., 103 A.D.2d 252 [2d Dept 1984]. In deciding such a motion, the Court must view the evidence in the Hght most favorable to the non-moving party. See Kutkiewicz v. Norton, 83 A.D.3d 904 [2d Dept 2011].
"New York does not recognize a common-law negligence cause of action for injuries allegedly caused by a domestic animal... To recover in strict liability in tort for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities." Gammon v. Curley, 147 A.D.3d 727 [2d Dept 2017][internal citations and quotation marks omitted]. "Vicious propensities include the propensity to do any act that might endanger the safety of the person and property of others[.]" Lillo-Arouca v. Masoud, 163 A.D.3d 646 [2d Dept 2018]. "[A]n animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities - albeit only when such proclivity results in the injury giving rise to the lawsuit." Collier v. Zambito, 1 N.Y.3d 444 [2004]; see also Lipinsky v. Yarusso, 164 A.D.3d 896 [2d Dept 2018].
Here, the Court finds that Defendants established their prima facie entitlement to judgment as a matter of law. Both Defendant Michael Bird and Plaintiff testified their dogs had frequent playdates, where they would run around, and their interactions were playful. Also, they both testified that that neither of them had seen Gizmo bite, growl, or bare his teeth at anyone. See Jackson v. Georgalos, 133 A.D.3d 719 [2d Dept 2015]. In opposition, however. Plaintiff raised triable issues of fact based upon the conflicting testimonies of the parties. During her own EBT, she testified that during an incident about six months to one year prior to August 24, 2017, while playing with Patron, Gizmo left Patron and directly went to her and knocked her down. Meanwhile, Defendant Michael Bird testified that both the dogs knocked Plaintiff down during that incident because they were running while playing with each other. Additionally, Plaintiff testified that during the August 24, 2017 incident. Gizmo knocked her down while Patron was not in the area. Meanwhile, Defendant Michael Bird testified that though he was present, he did not see the cause of Plaintiff s fall. Defendants allege that Gizmo's actions of knocking people down while running and playing with other dogs is normal dog behavior and not actionable. However, as recognized by the Appellate Division Second Department, a dog behaving in a manner that is not necessarily considered dangerous or ferocious "but nevertheless reflects a proclivity to act in a way that puts others at risk or harm" can be found to have vicious propensities. Marek v. Burmester, 37 A.D.3d 668, 669 [2d Dept 2007]. Therefore, in viewing the evidence in the light most favorable of the non-moving party, the Court finds that there are triable issues of material fact regarding whether the alleged incidents of Gizmo knocking down Plaintiff constitutes normal dog behavior or vicious propensities. See Una Thai Wong v. Largana, 170 A.D.3d 700 [2d Dept 2019][affirming dismissal of defendant's motion for summary judgment where "[t]he parties provided conflicting testimony as to the nature of the contact between the plaintiff and the dog on the day of the incident and the parties' prior observation of the dog's behavior and disposition"]. Accordingly, the Court denies Defendants' motion for summary judgment.
The foregoing constitutes the Decision and Order of the Court.
The parties are hereby notified of the virtual pre-trial conference scheduled for April 23, 2021 at 11:00 am.
This conference will be held virtually via Microsoft Teams. At least two business days prior to the conference, Plaintiffs' counsel shall provide the Court with the email addresses of all counsel of record via letter on NYSCEF.