Snyder v National Parking Sys.

[*1] Snyder v National Parking Sys. 2004 NY Slip Op 51311(U) Decided on October 4, 2004 Supreme Court, New York County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 4, 2004
Supreme Court, New York County

LISA SNYDER, Plaintiff,

against

NATIONAL PARKING SYSTEMS, DAN POWER a/k/a DAN POWERS AND JOHN DOES 1 through 10, Defendants.



111990/01

Paula J. Omansky, J.

In this action for personal injuries arising from a dog bite, defendants National Parking Systems and Dan Power a/k/a Dan Powers move for summary judgment and to dismiss the complaint.

Plaintiff cross-moves, pursuant to CPLR 3123 and/or CPLR 3126, for an order striking defendant's answer for spoilation of key evidence and for sanctions and the costs of this motion.

FACTS

Plaintiff Lisa Snyder states that she was bitten by defendants' dog on June 12, 2000, before 2:30 p.m., when she entered the defendants' parking garage, located at 4055 10th Avenue in Manhattan, to retrieve her automobile. Plaintiff states that she had patronized the defendants' garage on prior occasions as both a monthly and an occasional parker.

On one occasion plaintiff noticed a large bag of dog food located near the office area. Plaintiff asked the attendant, called "Junior," about the food and was informed that the food was for a dog kept at the garage. Plaintiff expressed surprise and the attendant lead her to the lower level of the garage to see the dog. The dog, a pit bull, was chained in a small area all the way in back of the garage. Plaintiff alleges that the dog was dirty and unkempt and appeared ill and poorly cared for. In particular, plaintiff states that she believes that the dog was not walked regularly because there were piles of dog's feces located near and around the dog. In addition, the dog was allegedly coved with white chalk or construction dust. and the dog was sneezing. Plaintiff states that she commented on the dog's appearance and that the attendant allegedly responded that there was not much time for the dog.

Plaintiff states that she occasionally inquired as to the dog. On June 12, 2000, she noticed that the dog had been moved to the area or station where people waited for their cars to be retrieved. There was a man, woman, and child ahead of her and plaintiff states that she waited for the attendant to retrieve the car of the family. She then stated that she presented her receipt and the attendant left to retrieve her car. While she was waiting for her car, the dog allegedly walked over to her. She states that the dog was on a long chain. plaintiff states that she extended her hand out to the dog and that the dog smelled it. Plaintiff then petted the dog and spoke in a friendly manner. The dog acted in a non-threatening manner until it turned its head and looked at her in a way [*2]that frightened her. According to plaintiff, she immediately stopped petting the dog and it bit her hand.

Plaintiff claims that after she pulled her hand out of the dog's mouth she was bleeding profusely and that she saw bone. Plaintiff stated that she walked away from the dog, sat on the ground and felt faint. Plaintiff stated that a young woman named Sonia, who worked for the garage, came to assist her. She recalls that Sonia was concerned. Plaintiff asked her to call her friends and to call for an ambulance. No ambulance came. Plaintiff's friends, Nicole Waicunas and Michael Bishop, arrived at the scene. One called a car service and the two friends, as well as Sonia, took plaintiff to New York Presbyterian Hospital.

Plaintiff later returned to the emergency room, on June 19th with painful swelling in her finger. Plaintiff stated that Dr. Nelson Botwinck, a hand surgeon, performed surgery on her finger, which is allegedly disfigured. Plaintiff also maintains that she has suffered permanently injury and suffers pain, numbness, limitation of motion in her finger, allegedly due to nerve damage. In addition, plaintiff alleges that she has difficulty using a key board or to perform any tasks which require manual dexterity.

Security officer, Charles M. Mattson states that plaintiff had fed the dog and had taken care of the dog before the bite. Mattson also claims that plaintiff stated that it was her fault and that her friend would adopt or find a home for the dog. Mattson further testified that plaintiff brought food to the dog and that he had informed plaintiff prior to the incident that someone would bring the dog down to the ASPCA and that the dog would probably be put to sleep. Mattson did not know the owner of the dog or if any of the employees ever took the dog home, for walks or to the veterinarian. Defendants maintain that the animal is not now on the premises.

Plaintiff also states that Sonia told her that she was afraid of the dog and that she was concerned that the dog might bite someone. In addition, plaintiff states that she later learned that the dog had allegedly attacked a woman named Grietje Du La Fontaine. Plaintiff states that she spoke to Fontaine who stated that a dog came out of the garage and attacked her. Fontaine, however, was unwilling to submit a statement in this law suit.

Defendants have stated that they are not aware of any prior dog bites or complaints regarding the subject dog and that they do not have any records indicating the method of care, feeding and maintenance of the dog. They state that Juan Almonte was the employee on duty on the date of the alleged attack. Moreover, they maintain that Sonia is not a salaried employee of the defendants. Plaintiff states that defendants have not provided any veterinarian records or license number for the pit bull which has allegedly prevented plaintiff from inspecting the dog, or obtaining health department records for the animal [FN1]. Defendants state that plaintiff never asked to inspect the dog after the attack and that she first apprised defendants that she intended to sue on March 21, 2001. Matson also testified that the dog remained on the premises two weeks after the alleged bite.

DISCUSSION

It is well settled in New York that "the owner of a domestic animal who either knows or [*3]should have know of the animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities" (Collier v Zambito, 1 NY3d 444, 446 [2004]). "Vicious propensities include the 'propensity to do any act that might endanger the safety of the persons and property of others in a given situation'"(ibid,, quoting Dickson v McCoy. 39 NY 400, 403 [1868]). Once the dog owner has knowledge of vicious propensity the owner faces strict liability for the harm the animal caused as a result of those propensities (Collier v Zambito, supra, 1 NY3d, at 447).

Knowledge of vicious propensity is established by proof of prior acts of a similar kind of which the owner had notice (id. at 446). Moreover, a triable issue of fact as to knowledge of a dog's vicious propensities might be raised even in the absence of proof that the dog had actually bitten someone by evidence that it had been known to growl, snap or bar its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained ..... The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog's vicious propensities.

(Collier v Zambito, supra 1 NY3d, at 447 [citations omitted]). Vicious propensities are not established solely by the fact that a dog is confined, or the severity of the attack on the plaintiff, or the violent tendencies of the breed (ibid.; Sers ex rel Sers v Manasia, 280 AD2d 539, 540 [2d Dept], lv denied 96 NY2d 714 [2001]).

While the fact finder may consider a dog's breed as a factor in weighing viciousness, the breed alone is not sufficient to establish a factual issue regarding vicious propensities (Mulhern v Chai Management, 309 AD2d 995, 996 [3d Dept 2003], lv denied 1 NY3d 588 [2004]). Although New York courts have found that breeds commonly used as police dogs, such as German Shepards "'are by nature vicious, inheriting the wild characteristics of their wolf ancestors'" (Nardi v Gonzalez, 165 Misc 2d 336, 339 [City Ct, Yonkers 1995], quoting DiGrazia v Castronova, 48 AD2d 249 [4th Dept 1975]), New York Courts have not yet found that the genetic history of pit bulls makes them inherently vicious, or unsuited for domestic living in the same manner as wolves and leopards (see, Carter v Metro North Assocs., 255 AD2d 251, 252 [1st Dept 1998]).

Here, plaintiff has not presented any expert evidence that pit bulls are inherently vicious or that mistreatment of pit bulls produces or exaggerates any alleged vicious tendencies of the breed.

However, plaintiff is not relying solely on the breed of the dog. The dog at issue was more than a mere "office mascot" and was apparently used a guard animal which creates an issue of fact concerning whether the owner had knowledge of the dog's vicious propensities (Collier v Zambito, supra 1 NY3d, at 447; cf., Mulhern v Chai Management, supra, 309 AD2d, at 996; Kessler v Katz 212 App Div 838 [2d Dept 1925]). Plaintiff has further supported her claim that defendants had prior knowledge of vicious propensities by stating the name of an alleged victim of the dog, Grietje Du La Fontaine a pedestrian, and that of a garage employee, Sonia, who feared that the dog would bite a customer.

In support of the negligence claim, plaintiff alleges that defendants, whose garage is open to the general public, failed to take the proper precautions to protect customers legally on the premises from coming into contact with a guard animal. In New York, a landowner must exercise reasonable [*4]care not to expose third persons to an unreasonable risk of harm from a tenant's dog (Strunk v Zoltansky, 62 NY2d 572, 575 [1984]). On the day in question, the dog was placed in a public waiting area on a long enough chain so that it would come into direct contact with any person venturing near or entering the garage to do legitimate business (Laguttuta v Chilsom, 65 App Div 326, 328-329 [1901] [boy on premises for a business purpose]; see, Lagoda v Dorr, 28 AD2d 208, 209 [3d Dept 1967]). A jury must decide whether this practice constituted an unreasonable risk under the circumstances.

As the proponents for a motion for summary judgment, the burden is on defendants, the alleged owners of the garage, to make out a prima facie defense by submitting proof in admissible form (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see, Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 140, order issued 2000 WL 1835714 [1st Dept 2000]). In this instance, defendants have not supported their defense. Although defendants stated that the dog is no longer on the premises and that its whereabouts are unknown, defendants do not specifically deny ownership of the animal nor do they indicate that the dog was the sole property of an employee who brought it to the premises without the knowledge or permission of the employer (cf., Joe v Orbit Industries, Ltd., 269 AD2d 121, 122 [1st Dept 2000]). In fact, security officer Mattson actually testified that the dog was on the premises and needed to be put in a shelter. However, Mattson also stated that the dog remained on the site for two weeks after the bite. Defendants do not explain why Mattson believed that the animal should be removed from the garage and why they waited two weeks to take any action concerning the dog. Despite the fact that defendants deny that Sonia was their employee, Mattson confirmed that Sonia worked on the premises. This discrepancy concerning Sonia's exact status is not explained.

Defendants have also failed to give Sonia's full name or information concerning other employees present on the day of the alleged attack. Defendants also have not explained why they kept no records, including necessary vaccination records, on a dog which their security officer admits was on the premises for a period of time (see. Smalls v Reliable Auto Service, 205 AD2d 523, 524 [2d Dept 1994]).

However, nothing in the present record supports plaintiff's claim that defendants' failure to keep records rises to the level of spoilation of evidence which warrants sanctions (cf., Baglio v St. John's Queens Hosp., 303 AD2d 341 [2d Dept 2003]; Squitieri v City of New York, 248 AD2d 201, 202 [1st Dept 1998]). Those branches of plaintiff's cross motion to strike the answer and for costs are also denied.

Accordingly, it is

ORDERED that defendants' motion for summary judgment and to dismiss this action is dismissed; and it is further

ORDERED that plaintiff's cross motion for an order striking defendant's answer for spoilation of key evidence and for sanctions and the costs of this motion is denied; and it is further

ORDERED that the parties are directed to appear for a status conference on October 22, 2004, at 11:00 a.m. at 71 Thomas Street, Room 205, New York, NY

DATED: October __, 2004 ENTER:

PAULA J. OMANSKY J.S.C. Footnotes

Footnote 1:New York City Health Code requires a city resident who owns or harbors a dog three months of age or older to have the dog actively immunized against rabies (Fairman v Santos, 174 Misc 2d 85, 89 [Sup Ct, Queens County, 1997], citing 24 RCNY 11.16).