Opinion
7398/06.
Decided September 9, 2008.
The plaintiffs are represented by the law firm of Burns Harris, Esq., by Brett E. Rubin, Esq., of counsel, the defendant the City of New York is represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Zev Singer, Esq., of counsel.
In this action, the defendants the City of New York (City), police officers Chan and Jenkin move to dismiss three of the four cause of action of the complaint.
The case arises out of an incident which occurred on May 21, 2005. Police were called to the scene at 479 Herkimer Street, Brooklyn, NY in response to two calls. The first was that a female was being assaulted and the second was that a weapon was discharged. One of the officers, Jonas Bazile, testified at an examination before trial that when he arrived at the scene, two women were on the front porch and that he "heard a aggressive dog bark coming form the house". Officer Bazile testified as follows:
Q:After you heard the dog barking, what did you do?
A:I requested somebody on the porch to hold the dog.
Q:What happened after that, what happened next?
A:The dog came and barked and charging to me, its teeth grinding.
Q:What did you do in response to the dog charging at you?
A:I took couple of steps back, I bumped into Officer Binns and
I discharge my firearm.
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Q:Why?
A:Because I was in fear that I was going to get bitten by that dog.
Q:Why did you fear that you were going to get bitten by the dog?
A:Because the dog was becoming aggressive and the barking — his teeth was grinding and I felt that I was in danger that time.
Plaintiffs Navis Johnson (Johnson) and Eric Mitchell (Mitchell), the owners of the dog, sue in the first cause of action for "negligent and intentional infliction of emotional distress" and deprivation of "Civil Rights". They alleged they were "in extreme fear of bodily harm and death" "because bullets and shrapnel came very close" to plaintiffs.
The first cause of action also alleges negligent hiring and training by the City of the police officers. In the second cause of action, plaintiffs sue for common law negligence because of the City's breach of its "duty to completely and sufficiently hire, train and retain" the defendant police officers. The third cause of action is a repetition of the negligent and intentional infliction of emotional distress claim.
The fourth cause of action for false arrest is asserted only by Mitchell and is not a subject of this summary judgment motion.
The City's motion for summary judgment is granted. With respect to the claims alleged in both the first and third causes of action for negligent and intentional infliction of emotional distress, a dog is personal property and damages for emotional distress may not be recovered as a result of its intentional or negligent destruction ( Fowler v Town of Ticonderoga, 131 AD2d 919 [3d Dept1987]). Plaintiffs' opposition argues that the shooting of the dog constitutes "conduct exceeding all bounds usually tolerated by society" and meets this standard which was set down by the Court of Appeals in Fischer v. Maloney, 43 NY2d 553 for tort claims for emotional distress.
In Fischer, the Court of Appeals dismissed a complaint alleging emotional distress arising from a protracted and nasty co-op board dispute. Plaintiffs have failed to set forth any case law which is remotely relevant and supportive of their claim for damages for emotional distress as a result of the shooting of a dog. At oral argument, counsel also argued that plaintiffs were in the "zone of danger" during the shooting and this constitutes an independent basis for the tort claims. At the outset, this argument fails as plaintiffs have not submitted any affidavit from a person with personal knowledge which set forth facts in support of such a claim.
The claims for negligence and negligent hiring and training also fail. Where, as here, an employee is acting within the scope of his employment which renders the employer liable under respondeat superior, a cause of action for negligent hiring or retention is not sustainable ( Karoon v NYC Transit Authority, 241 AD2d 323 [1st Dept 1997]).
Here there is no dispute that the officers were responding to calls for assistance and were acting within the scope of their employment.
The negligence claim is likewise without merit as the City and the police officer are not liable in negligence for damages resulting from the discretionary action of the police officer. ( Tango v Tulevech, 61 NY2d 34).
Accordingly, the defendants' motion for summary judgment dismissing the first, second and third causes of action is granted.
The foregoing constitutes the decision and order of the Court.