Pisano v Cruci

[*1] Pisano v Cruci 2009 NY Slip Op 50932(U) [23 Misc 3d 1125(A)] Decided on May 5, 2009 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 5, 2009
Supreme Court, Kings County

Antonio Pisano and Antoinetta Pisano, Plaintiffs,

against

Beatrice Cruci, Tom Licata, Anthony Cruci and Michael Cruci, Defendants.



10153/2006



P-TALISMAN, RUDIN & DELORENZ

409 FULTON STREET

BROOKLYN, NEW YORK 11201

(718) 243-2700

D- REED S. GROSSMAN - LICATA

44 COURT STREET, SUITE 906

BROOKLYN, NEW YORK 11201

(718) 246-5492

D-GANNON, ROSENFARB & MOSKOWITZ - CRUCCI

120 BROADWAY, 30TH FLOOR

NEW YORK, NEW YORK 10271

(212) 655-5000

Wayne P. Saitta, J.

Defendant, TOM LICATA, (hereinafter "Defendant"), moves this court for an Order pursuant to CPLR § 3211 for Summary Judgment against the Plaintiffs and granting further relief as this Court deems just and proper. [*2]

Upon reading the Notice of Motion by Reed S. Grossman, Esq., Attorney for Defendant, Tom Licata, dated November 25th, 2008, together with the Affirmation in Support of Summary Judgment of Reed Grossman, dated November 25th, 2008, together with the Affidavit in Support of Summary Judgment of Tom Licata, dated November 24th, 2008, and all exhibits annexed thereto; the Notice of Cross-Motion by William J. Crowe, Esq., Attorney for Defendant, BEATRICE CRUCI, dated November 25th, 2008, together with the Affirmation in Support of William J. Crowe, Esq., dated November 25th, 2008, and all exhibits annexed thereto; the Memorandum of Law by William J. Crowe, dated November 25th, 2008; the Affirmation in Opposition by Robert G. Abruzzino, Attorney for Plaintiffs, Antonio Pisano and Antoinette Pisano, dated December 8th, 2008, and all exhibits annexed thereto; the Reply Affirmation in Support of Summary Judgment by Reed S. Grossman, dated January 28th, 2009, and all exhibits annexed thereto; the Reply Memorandum of Law by William J. Crowe, dated January 28th, 2009; and after argument of counsel and due deliberation thereon, Defendant's motion for Summary Judgment is denied for the reasons set forth below.

FACTS

Plaintiff Antonio Pisano states that on July 5th, 2004, he was walking on a public sidewalk when a dog, which came from Defendant's residence, (hereinafter "the building"), charged him and bit him two times, causing him injury. Defendant Tom Licata is the owner of the dog who Plaintiff alleges bit him.

Defendant lived on the second floor of the premises on July 5th, 2004. He stated that to access his second floor apartment he would use an interior stair case. He also stated there was no fence around the front yard of the building.

Defendant states that while he was going down the interior stairs of his building to let his dog out the front door, he noticed the door to the outside was open. He admitted to having opened the door on the way into the building just prior to his letting his dog go downstairs.

Defendant denies knowledge of any prior complaint about any vicious tendency of his dog prior to July 5th, 2004.

On February 5th, 2009, the complaint and all cross claims against the building owner Beatrice Cruci were dismissed.

ARGUMENTS

Defendant argues that his dog did not have a vicious propensity and had never bitten or threatened anyone prior to this incident. He argues that in the absence of a known vicious propensity of the dog, a violation of the leash law is insufficient for a finding of common law negligence.

Plaintiff argues that Defendant knew of the dog's vicious propensity and therefore should be found negligent for the attack. He further argues that even if the dog had no propensity for violence, a violation of the Leash Law, coupled with a bite, is sufficient to create potential liability to a dog owner.

ANALYSIS

It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. [*3]Med. Center, 64 NY2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact which require a trial of action. Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers.

A motion for summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party". CPLR §3212 (b).The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.

In the instant case, the Defendant's burden is to demonstrate that there is no triable issue of fact which could support a finding that he is liable for his dog attacking the Plaintiff.

A dog owner is liable for injury to a person bitten by the dog where the owner has knowledge of the dog's vicious propensity. In this case, Plaintiff has adduced no evidence from anyone with personal knowledge that the dog had a propensity for violence. However, even without proof of a vicious propensity, liability may be found against a dog owner based on a violation of the New York City Leash Law, which prohibits owners from permitting their dog to be in a public place unleashed. New York City Health Code 24 RCNY §161.05(a).

The Appellate Division Second Department last year in Petrone v. Fernandez, 53 AD3d 221, 862 NYS2d 522 (2008), reaffirmed its long-standing rule that a violation of the leash law can be a basis to impose liability against a dog owner.

A leash law violation alone will not impose liability in a situation where the injury resulted from non aggressive behavior such as a dog running into a person. Zelman v. Cosentino, 22 AD3d 486, 803 NYS2d 652, (2nd Dept 2005). However, a leash law violation can be a basis for liability against an owner where the violation results in injury from an aggressive act such as a bite. Petrone v. Fernandez, 53 AD3d 221, 862 NYS2d 522 (2008), Scotto v. Mara, 23 AD3d 543, 806 NYS2d 603 (2nd Dept 2005).

The Second Department recognizes two alternate theories of liability against a dog owner, strict liability and common law negligence. Strict liability may be imposed when the owner knew the dog had a propensity for aggression. Common law negligence applies even in the absence of a dog's known vicious propensity, where there is a violation of a law or an ordinance and the injury is caused by aggressive behavior such as a bite.

In Petrone, the Second Department held that the Court of Appeals' decision in Bard v. Jahnke, 6 NY3d 592, 815 NYS2d 16 (2006), applied only to imposition of strict liability on an animal owner and did not preclude imposing liability on an owner based on a theory of negligence as evidenced by a leash law violation. [*4]

Bard involved a case where a carpenter was injured by a bull while working on a farm. The Court of Appeals held that the bull's owner could not be held strictly liable because he had no knowledge of the animal's vicious propensities, relying on the standard established by its earlier decision in Collier v. Zambito, 1 NY3d 444, 775 NYS2d 205 (2004).

The Court in Petrone noted that Bard did not involve a leash law violation and the Court of Appeals did not address the liability of a dog owner based on a theory of negligence, as it did not have the issue before it. The Second Department in Petrone also noted that Bard did not overrule the Court of Appeals' earlier decision in Hyland v. Cobb, 252 NY 325 (1929), which held that the violation of a local law, rule or ordinance can give rise to liability where an unmuzzled dog is the proximate cause of injury, despite a lack of vicious propensity. The Second Department explicitly reaffirmed in Petrone that it still recognizes a leash law violation as a basis to impose liability on a dog owner where their dog bites a person.

The question herein then is whether Defendant violated the leash-law and whether that violation was a proximate cause of Plaintiff's injuries.

The leash law provides,

A person who owns, possesses or controls a dog shall not permit it to be in any public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or chain not more than six feet long. New York City Health Code §160.05(a) (Emphasis added).

Ballentine's Law Dictionary defines "permit" as "to give permission; to license. To grant leave or liberty; to allow to be done by giving consent or by not prohibiting". Thus one can permit a thing either by overtly taking an action, or by failing to take an action necessary to prevent a thing from occurring.

On July 5th, 2004, after letting his dog down the interior stairs, Defendant came down the stairs and found the door to the front of the house was open. He said he sent the dog upstairs and when he went to close the front door, he saw Plaintiff in front of the house. It was then that Plaintiff told Defendant that his dog had bitten him.

Defendant admitted that he and his family had opened the door as they had just come in carrying groceries. Defendant does not deny that the door was still open when the dog was let down the stairs. If Defendant let the dog go down the stairs unleashed, after leaving the front door open, this would amount to permitting the dog to have access to the public sidewalk unleashed, in violation of the leash law.

Defendant cites the case of Vitrella v. Rodrigues, 11 AD3d 287, 783 NYS2d 535 (1st Dept 2004), in support of the proposition that a violation of the leash law is not necessarily applicable in this case. In Vitrella, the plaintiff was bitten by the defendant's dog who was chained in the front yard, but slipped out of its leash. The Court [*5]dismissed a claim of strict liability, holding that there was no evidence of "vicious propensit[y]", and that "[a]bsent such evidence, plaintiffs' negligence claim had to be based on a distinct act that the defendant should have done or refrained from doing in the particular circumstances or some distinct enhanced duty". Id. at 287, 535.

However, the holding in Vitrella stands for the proposition that liability based on a violation of the leash law is not strict liability, but common law negligence. The above quote from Vitrella is simply a variant of the standard definition of negligence: doing an act a reasonably prudent person would not have done, or failing to do an act a reasonably prudent person would have done. In Vitrella, it was not shown that the owner did not act reasonably, or that the dog slipping his chain was the result of any negligence on the part of its owner.

In the present case, where the dog was not leashed, there is a question of fact as to whether the owner contributed to the dog getting to the sidewalk by either leaving the door open, failing to make sure the door was closed or failing to make sure the dog was leashed.

If a jury found that Defendant left the building door open, then it could reasonably conclude that letting the dog down the stairs without being restrained constituted "permitting" the dog to gain access to the sidewalk unleashed, and therefore summary judgment is not appropriate.

WHEREFORE, Defendant's motion for summary judgment is herein denied. This shall constitute the decision and order of the Court.

ENTER,

_______________________________

May 5, 2009JSC