Opinion
554 CA 20-00940
10-08-2021
VIKKI-LYNN A., as Parent and Natural Guardian of Kaeden J.M., Plaintiff-Appellant, v. Jeffrey M. ZEWIN, Defendant-Respondent, et al., Defendants.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR PLAINTIFF-APPELLANT. RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint against defendant Jeffrey M. Zewin insofar as it asserts a cause of action for strict liability, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by her infant child when he was attacked by two Rottweilers harbored by tenants living in a house owned by Jeffrey M. Zewin (defendant). Defendant moved for summary judgment dismissing the complaint against him on the ground that he was not aware that dogs were kept on the property or that those dogs had vicious propensities. In opposition to the motion, plaintiff submitted, inter alia, the affidavits of two nonparty witnesses: Erica Davis and Terrance Cheetham. Supreme Court, however, precluded those affidavits as a remedy for plaintiff's failure to disclose them during discovery, and thus it did not consider them on the motion. The court determined that, absent those affidavits, plaintiff failed to raise a triable issue of fact, and it granted defendant's motion. Plaintiff appeals.
Preliminarily, we note that plaintiff does not address the dismissal of the complaint insofar as it asserts a cause of action for negligence, and we therefore deem any challenge to that part of the order abandoned (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, cases involving injuries inflicted by domestic animals may proceed only under a theory of strict liability, not on theories of common-law negligence (see Russell v. Hunt , 158 A.D.3d 1184, 1185-1186, 70 N.Y.S.3d 279 [4th Dept. 2018] ).
With respect to the merits, we agree with the court that the affidavit of Davis, insofar as it contained a party statement of defendant, should have been disclosed. CPLR 3101 (e) "enables a party to unconditionally obtain a copy of his or her own statement[,] creating an exception to the rule that material prepared for litigation is ordinarily not discoverable" ( Sands v. News Am. Publ. Inc. , 161 A.D.2d 30, 40, 560 N.Y.S.2d 416 [1st Dept. 1990] ). We nevertheless agree with plaintiff that the court abused its discretion in precluding Davis's affidavit from consideration in opposition to the motion (see generally Zakhidov v. Boulevard Tenants Corp. , 96 A.D.3d 737, 739, 945 N.Y.S.2d 756 [2d Dept. 2012] ; Ronan v. Northrup , 245 A.D.2d 1119, 1119, 667 N.Y.S.2d 181 [4th Dept. 1997] ). Defendant knew of Davis as a person of interest, which is why counsel sought to depose her approximately four months prior to making the motion, and defendant did not seek the assistance of the court to compel Davis's production (see Dume v. CK-HP 1985 Marcus Ave., LLC , 136 A.D.3d 860, 861, 25 N.Y.S.3d 329 [2d Dept. 2016] ; Pearson v. City of New York , 74 A.D.3d 1160, 1161-1162, 904 N.Y.S.2d 171 [2d Dept. 2010] ). Inasmuch as plaintiff is not precluded from relying on Davis's affidavit to oppose summary judgment, Davis is not precluded from testifying at trial (cf. Fleming v. Vassallo , 295 A.D.2d 172, 172, 744 N.Y.S.2d 315 [1st Dept. 2002] ).
We also conclude that the court abused its discretion in precluding the Cheetham affidavit from consideration. Cheetham was listed as a witness in discovery and was deposed. Cheetham is not a party to this action, and his affidavit did not include any statements of a party. Even assuming that Cheetham's statement was discoverable, we note that defendant's discovery demands did not include a demand for nonparty witness statements. Assuming further that defendant's discovery demands could be read to include a request for the statement of a nonparty witness, i.e., Cheetham, we conclude that Cheetham's statement was conditionally privileged as material prepared in anticipation of litigation (see CPLR 3101 [d] [2] ; Guzek v. B & L Wholesale Supply, Inc. , 126 A.D.3d 1506, 1508, 6 N.Y.S.3d 875 [4th Dept. 2015] ; Salzer v. Farm Family Life Ins. Co. , 280 A.D.2d 844, 846-847, 721 N.Y.S.2d 409 [3d Dept. 2001] ). Defendant would be unable to show any substantial need for Cheetham's statement inasmuch as Cheetham was deposed and therefore provided the substantial equivalent of the material contained in the statement (see Salzer , 280 A.D.2d at 847, 721 N.Y.S.2d 409 ).
Even assuming, arguendo, that defendant met his initial burden on the motion by establishing that he had no notice that dogs were on the premises and no notice of vicious propensities (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ; Toher v. Duchnycz , 172 A.D.3d 1894, 1895, 97 N.Y.S.3d 901 [4th Dept. 2019], lv denied 34 N.Y.3d 908, 2020 WL 205949 [4th Dept. 2020] ), we further conclude that plaintiff's submissions, including the Davis and Cheetham affidavits, are sufficient to raise triable issues of fact whether defendant had notice that dogs were harbored at the premises, whether the dogs had vicious propensities, and whether defendant knew or should have known of those propensities (see Modafferi v. DiMatteo , 177 A.D.3d 1413, 1414, 110 N.Y.S.3d 478 [4th Dept. 2019] ; Pauszek v. Waylett , 173 A.D.3d 1631, 1632, 101 N.Y.S.3d 787 [4th Dept. 2019] ; Meka v. Pufpaff , 167 A.D.3d 1547, 1547-1548, 90 N.Y.S.3d 448 [4th Dept. 2018] ). We therefore modify the order accordingly.