Wolf v Bakert

[*1] Wolf v Bakert 2005 NY Slip Op 51537(U) [9 Misc 3d 1114(A)] Decided on September 26, 2005 Supreme Court, Nassau County Brennan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 26, 2005
Supreme Court, Nassau County

Zachary Wolf, an infant under the age of 14 years, by his mother and natural guardian, PAULETTE GINSBURG, and PAULETTE GINSBURG, individually, Plaintiffs,

against

Michael Bakert, BARBARA BAKERT, NASSAU COUNTY MUSEUM OF ART and LONG ISLAND KENNEL CLUB, Defendants.



015871/02



TO: Vanessa Bakert, Esq.

Attorney for Defendants

By: Frank A. Alverde, Esq.

58 Scott Avenue

North Babylon, NY 11703

Koval Rejtig & Dean, PLLC

370 Old Country Road, Ste. 150

Garden City, NY 11530

Huenke & Rodriguez

One Huntington Quadrangle

Suite 2S02

Melville, NY 11747

Law Office of Ted Tobias

538 Broad Hollow Road

Melville, NY 11747

Lawrence J. Brennan, J.

The motion by the Defendants Michael Bakert and Barbara Bakert for an order granting summary judgment and dismissing the action is denied. The cross-motion by the Defendant Nassau County Museum of Art and the Defendant Long Island Kennel Club for an Order granting summary judgment and dismissing the action is granted.

In this action, the Plaintiff Zachary Wolf (DOB: 9/24/90) and his mother, Paulette Ginsburg, seek damages from defendants for personal injuries to the infant plaintiff caused by a dog ("Kirby"), which was owned by New Jersey residents Defendants Michael and [*2]Barbara Bakert. The incident allegedly occurred during the Defendant Long Island Kennel Club Dog Show, which was held on May 19, 2002 on the grounds of the Defendant Nassau County Museum of Art in Roslyn, New York.

The Plaintiffs allege that the Defendants Michael and Barbara Bakert knew the dog to be wild, unruly, and vicious. They further allege that it possessed a ferocious nature and disposition, with a propensity to attack other dogs and human beings. The complaint also alleges that the Defendants Michael and Barbara Bakert were employed by the Defendant Long Island Kennel Club and were licensees of the Defendant Nassau County Museum of Art. The specific injuries include a dog bite to the left side of the infant plaintiff's face, requiring surgical intervention involving 14 stitches as well as necessary aftercare.

Defendants Michael and Barbara Bakert's answer contains an admission that they attended a dog show held at Defendant Nassau County Museum of Art but includes a denial that they had been "employed" by that defendant. Likewise, they deny any knowledge as to the dog "Kirby's" wild, unruly, and vicious nature and propensities.

Not addressed in either this motion or the cross-motion of the Defendants Nassau County Museum of Art and Long Island Kennel Club, are counterclaims asserted by the Defendants Michael Bakert and Barbara Bakert against the plaintiffs. These allege the diminished economic value of their chattel, to wit, the dog "Kirby", and defamation to their personal and business reputations.

Defendants Michael and Barbara Bakert admit to being the owners of a dog with the American Kennel Club registered name of Bis Biss Am/Can. Ch. Xint's Murphy's Irish Red CGC (American Kennel Club Registration Number NM69313201 and DNA Profile V31706) with the call name "Kirby". They further admit that this dog was present at the dog show.

In support of this application, Defendants Michael and Barbara Bakert refer to sworn statements at the time of the incident that the dog was on a leash, was lying down, and did not growl while being petted. Rather, it is alleged by the Defendant Michael Bakert that the 12 year old Plaintiff Zachary Wolf jumped on the dog. [Defendant Bakert's Motion to Dismiss: Exhibit D (deposition transcript of Defendant-movant Michael Bakert, December 19, 2003 at pp. 53:4 to 54:8)].

This must be contrasted with the clear and unequivocal testimony of the infant Plaintiff Zachary Wolf, whose version is that he was kneeling down and petting "Kirby" for one to two minutes before the dog lunged and bit his face. [See Affirmation in Opposition of Plaintiffs, dated December 24, 2004: Exhibit A (deposition transcript of Plaintiff Zachary Wolf, November 4, 2003, at pp. 57:11 through 60:2)].

The Defendants Bakert, in both their Reply Affirmation and accompanying Memorandum of Law, have distinguished some of the legal precedents cited to and relied upon by the Plaintiffs Wolf in their opposition papers to the underlying motion.

However, the critical factual dispute about what may have provoked the dog cannot be overemphasized. In this regard, there is yet another purported version recounted in the [*3]deposition of the Defendant Michael Bakert. He was questioned about an apparent eyewitness, Dana Steward, who is another Chow owner.

Over objection, he stated that she told him how the incident occurred "A young fellow jumping on the dog's head jumping down toward the dog, is what she said to me." Furthermore, he testified that she stated that the child appeared to be unsupervised and out of control, and that he came back several times. [Defendants Bakert Motion to Dismiss: Exhibit D (deposition transcript of Defendant Michael Bakert at p.89:8-12)]. Inasmuch as this is inadmissible hearsay, the Court does not specifically rely on it as admissible proof for purposes of deciding this motion, which requires proof in admissible form. Zuckerman v. City of New York, 49 NY2d 557 (1979). There is also an October 13, 2004 affidavit of a Dana S. Kemp submitted by the defendants, which gives yet another, somewhat different version of events. This is in admissible form; however, it further confuses the facts. [Defendants Bakert Motion to Dismiss: Exhibit H].

It is not clear if Dana Steward and Dana Kemp are the same individual. Mr. Bakert's version at his deposition of what this affiant said to him somewhat differs from the factual statement in the affidavit.

Specific legal analysis must be secondary to the resolution of this central question between the parties. If, indeed, it was found that the infant Plaintiff Zachary Wolf jumped on the dog, which is Defendant Bakerts' assertion, then one application of relevant case law might result.

Conversely, if the trier(s) of fact were to agree with the infant plaintiff, that being that he was kneeling down and was innocently petting the dog for one to two minutes before the bite occurred, then another application of legal principles might prevail.

Indeed, the doctrine of falsus in uno might be considered as to either party or their witnesses. [PJI 1:22]

Regardless, the defendants' might also argue the infant plaintiff's assumption of risk and/or comparative fault, even in view of his age being 11 years 8 months at that time. The infant plaintiff would not then have been non sui juris.

Movants submit various affidavits of people familiar with the dog, which attest to their absence of any knowledge of violent propensities. In addition, Defendants Michael and Barbara Bakert submit the sworn statement of the dog's veterinarian, Dr. James Dorney, attesting to the lack of any violent or aggressive behavior.

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" Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action Zuckerman v. City of New York, supra.

Plaintiffs acknowledge that they are not proceeding on a theory of strict liability, [*4]requiring a finding that the defendant owners knew or should have known that the dog had vicious propensities. White v. Kings Vill Corp, __AD3rd__ (2nd Dept. 2005)

However, plaintiffs have chosen to proceed against defendants on general theories of negligence, requiring plaintiff to show the existence of a duty owed to plaintiffs, a breach of that duty, and subsequent damages arising therefrom. Hence, plaintiffs focus upon defendants' failure to take measures to prevent the incident, thereby breaching their foreseeable duty of care. Goldberg v. LoRusso, 288 AD2d 257 (2nd Dept. 2001).

The plaintiffs specifically oppose this motion by alleging, inter alia, that the owners should have limited the number of children near the dog and/or should have directed that no child be permitted to be close to the dog's face. Plaintiffs further assert that Zachary Wolf merely knelt down next to the dog and was petting the dog. At the same time, his brother, (age 10), and two sisters, (ages 9 and 3), and the infant plaintiff's friend, (age 11), were present.

Plaintiffs presuppose in their opposition papers that a professional dog behavior specialist will be permitted to testify at trial that Defendants Bakerts should have known that the specific behavior of this animal would result in an injury. Plaintiffs have submitted a sworn affidavit of a certified applied animal behaviorist, Richard H. Polski, Ph.D., whose offices are in Los Angeles, California. He describes the Chow breed as aggressive, with strong tendencies for territorial and dominance-related aggression, particularly towards children. As a result of these traits, combined with the heightened stressful atmosphere at a dog show, Dr. Polski further contends that any owner should exercise a high level of supervision. [Plaintiffs' Affirmation in Opposition: (Exhibit C: Polski Affidavit - Paragraph 6)].

It is noted that Dr. Polski neither examined nor observed the dog "Kirby" at issue here, which itself might have legal significance.[FN1] Certainly, the denial of summary judgment herein does not preclude the Defendants Bakert from seeking a Frye/Daubert preliminary hearing before trial or a motion in limine prior to voir dire to determine whether Dr. Polski's proposed testimony satisfies criteria relevant to demonstrate scientific or comparable professional reliability in the context of dog breeding and showing.[FN2] Generally, opinions about the characteristics of an animal's breed are inadmissible.

Defendants' counsel has offered a lengthy critique and analysis of statements apparently gleaned from Dr. Polski's websites. These issues are more properly the subject of cross-examination at trial.

The standard to be applied by the court in determining this motion is to assess whether the proposed admissible evidence and the pleadings, in a light most favorable to the plaintiffs, create significant material questions of fact. Zuckerman, supra [*5]

Although Dr. Polski's opinions about the specific "nature" of the Chow breed may be inadmissible at trial, it can hardly be said that all of his proposed testimony may be speculative.

Understandably, Dr. Polski's notarized Affidavit, at paragraph 4, adopts the factual version of the infant plaintiff. It may well be determined by the trial court that his expert opinions if he is deemed qualified to so testify, that allowing multiple children to be simultaneously petting the dog, in the allegedly stressful environment of a dog show, is inappropriate. This testimony might be relevant in assisting the jury in its deliberations.

In an effort to meet their burden herein, the plaintiffs are seeking to find the Defendants Bakert liable on the broader negligence theory. To achieve success thereon and to compel the Court to the motion for summary judgment, plaintiffs must show that, even if Defendant Michael and Barbara Bakert's have established that the dog had no vicious propensities, the defendants had enhanced duties to the infant. The cases in the Second Department that allow recovery on this negligence theory must be limited to their specific facts and cannot be seen as analogous to the facts before this Court. Goldberg v. Lo Russo, supra; Colarusso v. Dunne, 286 AD2d 37 (2nd Dept. 2001).

The Defendants Bakert have brought forth significant evidence that this dog was accustomed to being handled and had participated in more than 240 dog shows. Furthermore, he was leashed for this show. Generally, there cannot be a special duty created by this Court for the owners of a small breed dog, such as a Chow, at a dog show under the circumstances presented by plaintiffs.

Nevertheless, the factual dispute as to the circumstances which led to the bite must be resolved at trial, possibly through special interrogatories on the verdict sheet.

The Court believes it would be imprudent to grant summary judgment to the Defendants Bakert under these circumstances.

However, the cross-motion by Defendants Nassau County Museum of Art and Long Island Kennel Club seeking to dismiss the action against them is granted.

In the absence of known vicious propensities of "Kirby", there is no strict liability on the part of these defendants. In view of the broader common law negligence analysis, the defendants Nassau County Museum of Art and Long Island Kennel Club are absolved of liability. Plaintiffs have made no admissible evidentiary showing of any extra duty which these defendants had undertaken specific to this occurrence nor have they demonstrated cognizable negligence on their part.

Both of these defendants had no direct control of the dog, and the plaintiffs have not demonstrated vicarious liability. Young v. Irrell, 1AD3rd 509 (2nd Dept. 2003). Indeed, not even a broad reading of Dr. Poloski's affidavit lends itself to any argument that either of these defendants had an enhanced duty herein. His focus was clearly on the responsibilities of the owners and/or the handlers. Furthermore, he offered no comments whatsoever in support of the allegations in the plaintiff's February 3, 2003 Bill of particulars, at paragraph 6, that these [*6]defendants had a duty to inspect, to warn, and/or to perform a background check on the Defendants Bakert.

Thus, plaintiffs did not meet their burden of producing evidentiary proof in admissible form of the existence of material issues of fact regarding liability of the Defendant Nassau County Museum and the Defendant Long Island Kennel Club. ( See Alvarez; Zukerman supra)

The remaining parties are directed to appear on the Case Management Trial Calendar on November 2, 2005, at 9:20 a.m.

This shall constitute the Decision and Order of this Court

E N T E R

DATED: September 26, 2005

_____________________________

HON. LAWRENCE J. BRENNAN

Acting Supreme Court Justice

XXX Footnotes

Footnote 1: See. e.g. Hayden v. Sieni, 196 AD2d 573 (2nd Dept. 1993).

Footnote 2: Daubert v. Merrell Dow, 509 US 579 (1993); Frye v. US, 54 App. D.C. 46 (D.C. Cir. 1923).