Opinion
Index No. 29405/2018E
02-28-2020
Natasha Chattar, Plaintiff, v. Sheik H. Rahaman and Monica Rahaman, Defendants.
Unpublished Opinion
Hon. Norma Ruiz, J.S.C.
DECISION/ ORDER
Norma Ruiz, J.S.C.
Upon review and consideration of defendant's motion, plaintiffs cross-motion, opposition submitted hereto, and upon careful consideration, defendant's motion for summary judgment is denied, and plaintiffs cross-motion is granted in accordance with this order.
This matter arises out of a dog bite which allegedly occurred on June 7, 2018 in defendant's home. Defendants were owners of a dog named Rolie who had, on two (2) occasions prior to the date of the instant accident, bitten or nipped others. Plaintiff, who was visiting, asked for permission to pet the animal which was granted to her. While she was playing with or petting defendant's pet, she was bitten on the right side of her face by the dog, causing her serious injuries. Defendant now moves for summary judgment, arguing that plaintiff was placed on notice of Rolie's propensity to bite based upon those prior incidents where the dog bit defendant's daughter, as well as a non-party to this action. Defendants contend that because they notified plaintiff of the danger the animal posed, plaintiff therefore voluntarily brought about or subjected herself to the attack, relying on a century's old Court of Appeals case in support of their argument (Muller v. McKesson, 73 N.Y. 195 [1878]). In effect, defendants argue that plaintiff coming to their home and interacting at all with their dog amounts to an assumption of risk capable of extinguishing her claim entirely.
Plaintiff cross-moves for summary judgment, relying upon the well established "dog bite" rule which imposes strict liability on animal owners where an animal had vicious propensities or the owner should have known of the same (Carter v. Metro N. Assocs., 255 A.D.2d251 [1st Dept. 1998]). Plaintiff further states that she did not approach the dog until receiving permission that it was safe to do so by Rolie's owners. Based on the record before the Court, defendant's motion must be denied. Plaintiffs motion is granted as limited to strict liability.
On a motion for summary judgment, it is the burden of the summary judgment proponent to demonstrate prima facie entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact; failure to do so requires denial of the motion regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 N.Y.2d 320,324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 85311985]; Hairston v Liberty Behavioral Mgt. Corp., 157 A.D.3d 404, 405 [1st Dept 2018]; Cole v Homesfor the Homeless Inst., Inc., 93 A.D.3d 593, 594 [1st Dept 2012]). A court's task is issue finding rather than issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395,404 [1957]). "It is also well established that courts should deny summary judgment where there is any doubt about the existence of a triable issue of fact" (Molina v Phoenix Sound, Inc., 297 A.D.2d 595, 596 [1st Dept 2002]; see Morris v Lenox Hill Hosp., 232 A.D.2d 184, 185 [1st Dept 1996], aff'd 90 N.Y.2d 953 [1997]).
The Court of Appeals recent holding in Rodriguez v City of New York (31 N.Y.3d 312, 101 N.E.3d 366 [2018]) clarified the law with regard to summary judgment when questions of fact as to a plaintiffs comparative negligence exist. The Rodriguez court reaffirmed the principal that "a plaintiffs comparative negligence is [not] a complete defense to be pleaded and proven by the plaintiff, but rather is only relevant to the mitigation of plaintiffs damages and should be pleaded and proven by the defendant" Id. In this regard, they point out that CPLR § 1411 plainly states that "in any action to recover damages for personal injury ... the culpable conduct attributable to the claimant... including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages." Accordingly, a plaintiff does not "bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" in order to be entitled to judgment (Id. at 14).
Here defendants oppose plaintiffs motion for summary judgment primarily by relying on plaintiffs comparative negligence in causing her injury. In doing so, these defendants fail to raise any triable issue of fact as to their own negligence in causing the accident. Mueller stands for the proposition where, if someone wantonly provokes an animal, plaintiff may be barred from recovery. Here, the record before the court indicates that plaintiff spent a good deal of time, perhaps as much as an hour, playing with, petting and apparently kissing the dog prior to the accident. Under such a circumstance, the holding from Mueller is plainly inapplicable here.
Thus, even where there is evidence as in this case that a plaintiff knew of an animal's vicious propensities and nevertheless voluntarily brought about the injury, such culpable conduct will not serve as a bar to damages. Instead, it may serve as the basis to reduce her recovery. Accordingly, defendant's motion is denied in its entirety and plaintiff's motion is granted, limited to liability in this matter.
All counsel are directed to contact the court's court attorney - Nathaniel Chiaravalloti - at nchaiaravalloti@nycourts.gov, (cc: klebron@nycourts.gov) upon receipt of this decision to set this matter down for a conference consistent with the "Presumptive Alternative Dispute Resolution" systemwide initiative, launched by Chief Judge DiFiore and Chief Administrative Judge Lawrence Marks. Counsel are expected to appear in the part promptly at the appointed hour, have knowledge of the facts of the case, bring working copies of relevant medical records, have the authority to settle with access to the insurance adjuster, as well as the party, for meaningful settlement discussions. Counsel shall refrain from covering other matters in other court rooms at the appointed hour. Such practice will not be tolerated. The Court cannot allow one party's tardiness to impede the conference time slot for other litigants. Such lack of consideration for the Court's scheduling needs may result in sanctions. Per Diem attorneys not authorized to settle will not be permitted to appear. Any appearances by Per Diem attorneys in contravention of this rule may also result in sanctions chargeable to the attorney of record for abusing the court's limited resources.
Conference to be held on April 13, 2020, at 9:30am in Room 403. Failure to contact chambers for a time certain to appear before the conference date may result in sanctions. Movant is directed to file a notice of entry upon receipt of this order.
This constitutes the decision and order of the court.