Thompson v Lewis
Annotate this CaseDecided on July 14, 2006
Supreme Court, Nassau County
KIRK THOMPSON, Plaintiff,
against
WILLIAM LEWIS AND ELEANOR LEWIS, Defendants.
INDEX No.: 15301/04
Kenneth A. Davis, J.
it is ordered that this motion by defendants William Lewis and Eleanor Lewis for an order pursuant to CPLR § 3212 granting summary judgment and dismissing the plaintiff's Complaint as against the defendant is denied.
Plaintiff commenced this personal injury action against William and Eleanor Lewis by the filing of a summons and complaint dated October 22, 2004. The complaint alleges that the defendant's dog had vicious propensities and that defendants negligently supervised, controlled and maintained the subject dog. Issue was joined by service of defendants verified answer with combined demands dated December 8, 2004.
This action arises out of a dog bite incident occurring on or about August 12, 2003 at approximately 7:00 p.m. at the premises of defendants located at 3536 Silverton Avenue, Wantagh, NY. Plaintiff, Kirk Thompson, was employed by United Parcel Service. Upon completion of his route on August 12, 2003, Mr. Thompson was given an additional ten (10) stops, one of which was the home of defendants William and Eleanor Lewis. Plaintiff heard the dog, Mattingly, barking and scratching the door as he [*2]dropped the package on the stoop and rang the doorbell. As plaintiff approached his van he heard someone behind him instructing him not to move. As he turned around, the dog, a Rhodesian Ridgeback, bit Kirk Thomas' right elbow. He then ran into his truck, where the dog followed him and bit him once again on his right hand.
"In determining a motion for summary judgment, the court must ascertain whether there are any triable issues of fact in the proof laid bare by the parties' submissions of affidavits based on personal knowledge and documentary evidence, rather than in conclusory or speculative affidavits." Behar v. Ordover, 92 AD2d 557, 459 (2d Dept. 1983). "When a plaintiff seeks to recover in strict liability in tort for a dog bite, the plaintiff must prove vicious propensities and that the dog owner or person in control of the dog should have known of such propensities. The vicious propensities which go to establish liability include a propensity to do any act which might endanger another." Rugg v. Blackburn, 292 AD2d 736, 737 (2d Dept. 2002).
"An animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities. Such behaviors can include the animal being territorial, aggressively barking when her area was invaded, attacking another animal, or growling and biting at another dog." Mulhern v. Chai Mgt., 309 AD2d 995, 996 (2d Dept. 2003). Defendants admit that Mattingly would occasionally bark at other dogs as well as people on bikes, skateboards or walking near the house. Defendants were aware of incidents in which Mattingly jumped up on guests visiting their house. Furthermore, Rhodesian Ridgebacks as a breed are known to protect their territory against other animals and strangers.
"Even in the absence of a prior bite, a triable issue of fact regarding knowledge of vicious propensities may be raised by other evidence of the dog's aggressive behaviors." Collier v. Zambino, 1 NY3d 444, 446 (2d Dept. 2004). William and Eleanor Lewis testified that they were unaware of Mattingly ever biting or acting aggressively towards anyone prior to this incident with plaintiff Kirk Thompson. However, plaintiff has presented sufficient evidence that may or may not show that Mattingly did in fact have vicious propensities.
Vincent DeMartini, the neighbor across the street from the home of defendants claims to have been previously attacked by Mattingly. Mr. DeMartini states that Mattingly jumped on him and [*3]scratched his arm while he was at defendant's home. DeMartini further claims that defendants were aware of this incident. Furthermore, Mr. DeMartini states that he was told by defendant Eleanor Lewis that Mattingly reacted this way because he was "protective" and "did not care for men." William Lewis characterized this incident as one of his dog "playing" with Mr. DeMartini.
Defendants were also aware of an incident in which Mattingly jumped on a Long Island Lighting Corporation (LILCO) employee who was reading the gas meter in defendants' backyard. Defendants claim that this does not constitute aggressive behavior because the LILCO employee was not knocked down or injured by Mattingly's actions.
Furthermore, the postman for defendants, Philip Franco, claims that Mattingly chased him down the street to a neighbors home. He also claims that on one occasion the dog lunged and barked so violently at him that the dog broke a window in the house. There is undoubtedly issues of fact with regard to Mattingly's behavior on the aforementioned occasions. Whether the dog's behavior should be considered "territorial", "aggressive", or "vicious" is an issue for a jury to decide.
Defendant, Eleanor Lewis, admits to asking plaintiff not to move as Mattingly was running towards him. Plaintiff claims that this is evidence that Mrs. Lewis knew of Mattingly's dangerous propensities and realized that if he moved he would be attacked by the dog. Mrs. Lewis contends that she only yelled out to him because Mattingly had been known to run at children and knock them over in a "playful" manner. The meaning behind this warning is an issue of fact for the jury to decide whether defendants William and Eleanor Lewis knew or should have known Mattingly had any vicious propensities.
"Evidence of knowledge of propensities may be found in an owner's precautions to restrain the dog." Lagoda v. Dorr, 28 AD2d 208, 209 (2d Dept. 1967). Defendants, William and Eleanor Lewis, admit to restraining the dog in their front yard with two (2) leashes tied to a tree. Defendants claim this restraint was not to prevent injury to others, but only to prevent Mattingly from running into the street and injuring himself. Whether this restraint gives rise to an inference that Mattingly had vicious propensities is a triable issue of fact.
A claim of injury caused by a domestic animal may also be based upon a theory of negligence. For plaintiff to recover on a negligence theory there must be both a breach of some distinct [*4]duty required by the particular circumstances and the injuries sustained by the plaintiff must be reasonably foreseeable. Colarusso v. Dunne, et al, 286 AD2d 37, 732 (2d Dept. 2001). Defendant Eleanor Lewis concedes that she was aware that her front door did not close completely. The court finds that issues of fact exist as to whether the defendants were negligent in their supervision and control of their dog.
Based on the above, defendants' motion for an order pursuant to CPLR § 3212 granting summary judgment and dismissing the plaintiff's complaint is denied and the matter shall proceed to trial.
This decision constitutes the order of the court.
Dated: __________________ _______________________________
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
