Opinion
No. 9001/2014.
02-10-2017
Susan BERMAN and Eric Berman, Plaintiffs, v. David BOWMAN and Kaitlin Bowman, Defendants.
The following papers numbered 1 to 12 read on this motion by defendants for an Order pursuant to CPLR 3211(a)(7) and 3212, granting defendants summary judgment and dismissing plaintiffs' complaint:
| Papers | Numbered |
|---|---|
| Notice of Motion–Affidavits–Exhibits | 1–6 |
| Affirmation in Opposition–Affidavit–Exhibits | 7–10 |
| Reply Affirmation | 11–12 |
This is an action to recover damages for personal injuries allegedly sustained by plaintiff, Susan Berman, when she was bit and attacked by defendants' dog, Skippy, on June 10, 2013 in the 6th floor hallway of the building located at 75–25 153rd Street, Kew Gardens, New York.
Plaintiffs commenced this action by filing a summons and complaint on June 11, 2014. Defendants joined issue by service of an answer dated August 18, 2014. Plaintiff filed a Note of Issue on May 12, 2016. Defendants' time to serve a dispositive motion was extended to October 26, 2016 by So Ordered Stipulation dated June 3, 2016. Defendants now move to dismiss the complaint on the grounds that the complaint fails to state a cause of action and the causes of action lack merit. Although plaintiffs contend that the motion is untimely because defendants failed to comply with the June 3, 2016 Order, this Court finds that the motion is timely. The June 3, 2016 does not condition the extension of time to file motions on defendants' compliance with other provisions of the Order.
Defendants first contend that the complaint must be dismissed because it is brought only in negligence. This Court finds that the complaint sufficiently states a cause of action for strict liability. To the extent that the complaint alleges a common-law negligence cause of action, however, defendants are entitled to summary judgment because New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal (see Hastings v. Sauve, 21 NY3d 122 [2013] ; Vallejo v. Ebert, 120 AD3d 797 [2d Dept.2014] ; Egan v. Hom, 74 AD3d 1133 [2d Dept.2010] ).
To recover in strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities (see Petrone v. Fernandez, 12 NY3d 546 [2009] ; Bueno v. Seecharan, 136 AD3d 702 [2d Dept.2016] ); Matthew H. v. County of Nassau, 131 AD3d 135 [2d Dept.2015] ). "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, 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" (Ioveno v. Schwartz, 139 AD3d 1012, 1012 [2d Dept.2016] ; see Bard v. Jahnke, 6 NY3d 592 [2006] ; Collier v. Zambito, 1 NY3d 444 [2004] ; Bueno v. Seecharan, 136 AD3d 702 [2d Dept.2016] ). However, "the mere fact that a dog was enclosed or chained or that a dog previously barked at people is insufficient to raise a triable issue of fact as to whether it had vicious propensities" (Collier v. Zambito, 1 NY3d 444, 447 [2004] ).
In support of the motion, defendants submit an affirmation from counsel, Micahel V. Sclafani, Esq.; their own affidavits with color photographs of Skippy; a copy of the So Ordered Stipulation dated June 3, 2016; a copy of the pleadings; a copy of plaintiffs' verified bill of particulars; a copy of a black and white photograph of Skippy; copies of the transcripts of the examinations before trial of both plaintiffs and non-party witnesses Anil Autar and Robert Gilman; and records from BluePearl Veterinary Partners–Midtown regarding Skippy.
Plaintiff Susan Berman appeared for an examination before trial on October 30, 2015. She testified that on the date of the incident, she exited her apartment with her two dogs on a leash. She was walking her dogs towards the stairwell. She heard Skippy growling. Skippy was on a leash held by defendant Kaitlin Bowman. Skippy's growling caused no reaction from her dogs. When her dogs and Skippy came face to face in the corridor, she bent down and pushed her dogs back to make sure there was not going to be an incident. While she was bent-over, Skippy leaped into the air and bit her on the lip causing her to fall to the ground. Skippy continued to attack her by biting her numerous times on the hands. Her dogs remained passive. In response to her screams, plaintiff Eric Berman came into the hallway. He jumped on Skippy. Skippy then attacked Eric Berman by biting him on his finger. Her dog Altirius grabbed Skippy's back with its mouth and pulled Skippy off of Eric Berman. Prior to the incident, although she saw Skippy on a daily basis, she never saw Skippy attack or bite another person or animal. Skippy did bark aggressively at other dogs in a manner that she describes as small dog activity. She further described small dog behavior as yappy, kind of pulling at the leash, and wanting to go towards another dog.
Defendant Eric Berman appeared for an examination before trial on June 16, 2016. He testified that he had only seen Skippy approximately five to ten times before the subject incident. He saw Skippy act aggressively in that Skippy was very barky and he previously saw Skippy tug on the leash. He described Skippy's behavior as aggressive small dog type behavior. On the date of the incident, when he first exited his apartment, he saw plaintiff Susan Berman on the ground with Skippy attached to her face. Noone was holding Skippy's leash. His dogs were not reacting. He then grabbed Skippy, and Skippy bit his finger. His dog, Altirius, grabbed Skippy off of him.
Non-party witness Mr. Autar, a resident of the subject building who lived on the same floor as plaintiffs, appeared for an examination before trial on January 11, 2016. He testified that he saw plaintiffs' dog, a white pitbull, lock onto Skippy. Defendant Kaitlin Bowman was in the corner terrified, and there was blood all over the place. Plaintiff Susan Berman was on the ground punching her dog repeatedly trying to free Skippy. Plaintiffs' dog was locked onto Skippy with his teeth over Skippy's spinal area. He did not witness plaintiff Susan Berman get bitten because there was a lot of blood. Skippy did not ever evidence menacing or threatening behavior towards him or anyone else. He never saw Skippy growl, bark, or bear its teeth at anyone, nor did he see Skippy ever pull at its leash trying to get to someone. He never saw Skippy exhibiting aggressiveness at any time.
Non-party witness Robert Gilman, a resident of the building on the date of the incident, appeared for a deposition on February 12, 2016. He testified that he knew plaintiff Susan Berman because her dog had jumped up and kind of attacked his dog prior to the subject incident. He testified that it was common for plaintiffs' dogs to not be on a leash. He testified that he previously was the president of the building's tenants' association and during his tenure no one complained as to defendants' dog. He never witnessed defendants' dog exhibiting any vicious or aggressive propensities or tendencies.
Defendant Kaitlin Bowman submits an affidavit dated October 19, 2016. She affirms that Skippy never bit, scratched, attacked, bared or snapped its teeth, growled, lunged, or jumped at another person or animal prior to the subject incident. On the date of the incident, she was taking Skippy out for a walk. Plaintiffs' dogs were dragging their leashes without plaintiff Susan Berman holding on. When plaintiffs' dogs got closer to Skippy, plaintiffs' dogs began a vicious and unprovoked attack on Skippy. Plaintiff Susan Berman tried to stop her dogs from attacking Skippy. Skippy did not lunge at, jump, or bite plaintiff Susan Berman in any fashion.
Defendant Richard Bowman also submits an affidavit dated October 19, 2016, affirming that Skippy never displayed any vicious propensities. Additionally, he states that Skippy was never used as a guard dog or a watchdog.
Here, the evidence submitted in support of the motion, including the deposition testimony and defendants' affidavits, shows that Skippy had been living with defendants' family for nearly six years without incident before it allegedly bit plaintiff Susan Berman, that it never exhibited aggressive behavior, and that it was never used as a guard dog. Based on the such, defendants made a prima facie showing of entitlement to judgment of a matter of law by demonstrating that they were not aware, and should not have been aware, that Skippy had ever bitten anyone or exhibited any aggressive behavior prior to the subject attack (see Bueno v. Seecharan, 136 AD3d 702 [2d Dept.2016; Ioveno v. Schwartz, 139 AD3d 1012 [2d Dept.2016] ; Vallego v. Ebert, 120 AD3d 797 [2d Dept.2014] ; Roche v. Bryant, 81 AD3d 707 [2d Dept.2011] ).
In opposition, failed to raise a triable issue of fact regarding defendants' prior knowledge of Skippy's alleged vicious propensities. Plaintiffs submit an affidavit from counsel, Marc Gertler, Esq.; a copy of the Operative Report from the New York Hospital Medical Center of Queens, and copies of the transcripts of the examinations before trial of both defendants. Although plaintiff Susan Berman submits an affidavit dated January 3, 2017, stating that Skippy often behaved aggressively, was aggressive toward other dogs, would bark loudly and lunge towards other dogs, growl, snap, snare its teeth, and bark loudly at humans or animals that got to close to it, such affidavit contradicts her prior deposition testimony and is belied by the testimony of the two non-party witnesses. Accordingly, this Court finds that plaintiff Susan Berman's affidavit is merely an attempt to raise a feigned issue of fact to avoid the consequences of her earlier deposition testimony, and thus, is insufficient to raise a triable issue of fact (see Hodgson–Romain v. Hunter, 72 AD3d 741 [2d Dept.2010] ; Levine v. Kadson, 70 AD3d 651 [2d Dept.2010] ).
Accordingly, for the reasons set forth above, it is hereby
ORDERED, that defendants' motion for summary judgment is granted, the complaint is dismissed, and the Clerk of the Court shall enter judgment accordingly.