Doerr v Goldsmith

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Doerr v Goldsmith 2011 NY Slip Op 34185(U) September 7, 2011 Supreme Court, New York County Docket Number: 103840/10 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 9/8/2011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: HON. MANUELJ.MENDEZ PART ----'-'13.__ Juatlc• WOLFGANG DOERR, 103840/10 INDEX NO. Plalntlff(s), MOTION DATE 08-24-2011 MOTION SEQ. N0._"'"'00'-'-1_ __ -vDANIEL GOLDSMITH AND JULIE SMITH MOTION CAL. NO._ _ __ Defendant(•) • The following papers, numbered 1 to _L_ were read on this motion and cro1&-motlon to/ for Summary Judgment : Notice of Motion/ Order to Show Caul8 - Affidavits - Exhibits ... 2 Answering Affidavits - Exhibits _ _cross motion 'Ui z 0 ~~ I= a::: z UJ " ::> b~ J-Q c ...J w-J ~~ WW u. l: w la.: ct: ~o ...Ju. ::> u. lo w 0.. UJ w a::: UJ ~ ()'O 1~\\ Replying Affldavlta _ _ _ _ _ _ _ _ _ _ _ _ _ __ Cross-Motion: Yes X No _ 'I.. NE-'-N '<~~s off\CE. ~cL€ Upon the foregoing papers, It Is Ordered that defen&an'-i~Julie Smith's ("Smith"), motion for summary judgment is denied. On May 31,2009, the plaintiff was riding a bicycle In Central Park. Plalntiff claims that as he was riding his bicycle around the inner traffic loop at the south west corner of Central Park, he observed a male holding a dog on the right side of the loop In a manner that he was almost hugging the dog and on the left side of the loop he saw a woman clapping her hands on her upper thighs. Plaintiff clalms to have called out for the Individuals to watch their dog and a spllt second later, the dog, who was not wearing a leash, was In the middle of the road. Plalntltrs bike struck the dog, an~ Plaintiff sustained Injuries as a result of the collision. He claims that one to two seconds elapsed between the time when he first saw the Individuals with the dog and when he collided with the dog. Plaintiff sta1es he tried to apply his brakes when he recognized the situation, but to no av all. w UJ <( ~ z 0 I= 0 ::E Defendant Smith and defendant Goldsmlth ("Goldsmlth") were walking their dog In Central Park on the day in question. The dog was on leash for the walk from their apartment to the Park, but that upon entering the Park they removed the leash as Is permissible at certain times per Park regulatlons. Smith claims she was crossing at a crosswalk to gain access to the interior of the Park, but that Goldsmith hesitated before crossing the street. Smith claims she walked out into the crosswalk and called the dog, which was waiting with Goldsmith. Smith states [* 2] that she heard someone screaming, she then turned around, and Immediately saw a man on a bicycle crash into the dog. Smith clalms the blcycllst came out of nowhere, that the roadway was empty with no one to be seen when she first entered the crosswalk. Plaintiff commenced an action against the defendants for the personal Injuries he sustained as a result of the accident In Central Park on May 31, 2009. Plaintiff alleges that defendant Smith caused his alleged Injuries because she controlled and directed her dog into the path of the plalntlff causing plaintiff to collide with the dog which resulted In plaintiff being propelled from his bicycle and thereby suffering serious injury. Plaintiff claims that defendant(s) were reckless in that they knew the Park was frequented by bicycle traffic and knowingly created a dangerous condition by directing and encouraging the dog to cross a bicycle path. Defendant Smith seeks dismissal of plalntiff s causes of action asserting that there Is no evidence that the defendants harbored an anlmal with known, vicious propensities, or were negligent in any manner for causing the plaintiff's accident. Defendant Smith argues that plaintiff's negligence clalms against the defendant must be dismissed because the Courts do not recognize a cause of action for negligence caused by the actions of an owner's domestic anlmal, especially In the absence of proof of that animal's vicious propensities. Defendant Smith is correct to assert that where harm Is caused by a domestic anlmal, the owner's liability is determined solely by the rule of strict liability. See Petrone v. Fernandez, 12 N.Y.3d 546, 910 N.E.2d 993, 883 N.Y.S.2d 164 (2009). In such cases, liablllty hinges upon whether the animal's owner knew or should have known of the animal's viciousness. However, plaintiff Is not asserting that his alleged Injuries were caused by the misconduct of the animal. Plalntlff asserts that his injuries were caused by the misconduct of the defendant in directing the dog to cross the street thereby collldlng with plaintiff. Plaintiffs claims question the reasonableness of the conduct of Smith In directing the dog's movement In an unsafe manner that posed a forseeable risk of harm to others. The Instant case can be distinguished from the cases cited by defendant by the fact that in the instant case the anlmal in question was acting as Instructed by the owner. Plalntlff asserts that defendant's actions In calling the dog to cross the street posed a forseeable risk of harm to others. The case law that establishes strict llablllty for harms caused by a domestic animal Involve cases where the animal Is acting of Its own volition or reacting to a situation according to Its anlmal instincts. In order to prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admisslble evidence demonstrating the absence of any material Issue of fact. See Klein v. City of New York, 89 N.Y.2d 883, 652 N.Y.S.2d 723 (1996); Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463 (1993); Alvarez v. Prospect Hospital, [* 3] 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). In determining the motion, the court must construe the evidence in the light most favorable to the non-moving party. See SSBS Realty Corp. v. Public Setvlce Mut. Ins. Co., 253 A.D.2d 583, 677 N.Y.S.2d 136 (N.Y.A.D. 1•t Dept. 1998); Martin v. Briggs, 235 A.D.2d 192, 663 N.Y.S.2d 184 (N.Y.A.D. 1•t Dept. 1997). Plaintltrs clalm challenges the reasonableness of the defendant's conduct In calling the dog to cross the street. Defendant has not made a prlma facle case showing she is entltled to judgment as a matter of law through admlssible evidence. Given the two accounts of what transpired just prior to the accident, a question Is raised that must be decided by the trier of fact. Accordingly, It is ORDERED that defendant Julie Smith's motion for summary judgment Is denied. This constitutes the decision and order of this court. Dated: September7, 2011 ~ ......_ ..._.... . MANUEL J. MENDEZ J.S.C. 0 FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: D DO NOT POST 0 REFERENCE Check one; FILED SEP 08 2011 NEW YORK COUNTY CLERK'S OFFICE ,.,.., 4&C..

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