Davis v Leandra

[*1] Davis v Leandra 2010 NY Slip Op 51013(U) [27 Misc 3d 1232(A)] Decided on June 10, 2010 Supreme Court, Bronx County Thompson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 10, 2010
Supreme Court, Bronx County

Dorcas Davis and Delroy Davis, , Plaintiff,

against

Whitney R. Leandra, , Defendants. WHITNEY R. LEANDRA, Third-Party Plaintiff, HOULIHAN LAWRENCE INC., WESTCHESTER HOMES, INC. and BARRY MALAWER, Third-Party Defendants.



300918/08



APPEARANCES:

Young & Bartlett

Attorney for Plaintiffs

DORCAS DAVIS and DELROY DAVIS

81 main Street-Suite 118

White Plains, New York 10601

(914) 285-1500 Ahmuty, Demers & McManus, Esqs.

Attorney for Defendant/Third-Party Plaintiff

WHITNEY R. LEANDRA

200 I.U. Willets Road

Albertson, New York 11507

(516) 294-5433

Law Offices of Thomas K. Moore

Attorneys for Third-Party Defendant

HOULIHAN LAWRENCE, INC.

701 Westchester Ave., Suite 101W

White Plains, New York 10604

(914) 295-8500

Hersh & Hersh, P.C.

Attorneys for Third-Party Defendant

BARRY MALAWER

2 So. Division Street

Peekskill, New York 10566

(914) 737-0270

Kenneth Thompson, J.

Third-Party Defendant's HOULIHAN LAWRENCE INC. motion for an Order pursuant to CPLR § 3212 granting summary judgment, Third-Party Defendant's WESTCHESTER HOMES, INC. motion for an Order pursuant to CPLR § 3212 granting summary judgment, and Third-Party Defendant's BARRY MALAWER motion for an Order pursuant to CPLR § 3212 granting summary judgment are all consolidated for Decision herein.

Third-Party Defendant's HOULIHAN LAWRENCE INC. motion is granted.

Third-Party Defendant's WESTCHESTER HOMES, INC. motion is granted. [*2]

Third-Party Defendant's BARRY MALAWER motion is granted.

Defendant WHITNEY R. LEANDRA hired Third-Party Defendant HOULIHAN LAWRENCE INC. ("Houlihan"), a listing agency, to market and sell her home at 100 Lakeview Drive, Mahopac, NY ("the Premises"). Ms. Leandra allegedly informed Houlihan that she had two dogs, a Greyhound and a Labrador Retriever, that would need to be put in her garage when the residence was being shown. Therefore, she further requested two hours notice before the property was shown to prospective purchasers. Third-Party Defendant BARRY MALAWER was a real estate agent, and an independent contractor of Third-Party Defendant WESTCHESTER HOMES, INC. ("Westchester") the real estate agency, who was scheduled to show Ms. Leandra's home to Plaintiff DORCAS DAVIS during the evening of August 18, 2007.

On that day, Ms. Leandra came home at approximately 6:10 pm and was under the impression that Mr. Malawer had already shown her home. She claims that she avoided being around during showings and usually looked for an agent's business card as an indication that a showing had occurred as planned. After she arrived home on that date, she released her two dogs from the basement and allowed them to relieve themselves in the backyard. She brought the dogs back into the house and went into her bedroom to change her clothes when someone knocked on her door.

Ms. Leandra, with her Greyhound at her side, came to the door to find Mr. Malawer there with Ms. Davis ready to show her the home. Ms. Leandra informed Mr. Malawer that her dogs were loose, and that she had to put them up before they could enter. While she was taking the Greyhound to the basement, the Labrador opened the rear screen door—which Ms. Leandra acknowledged the dog learned how to do prior to that day—and came around to the front of the house to see who was at the door. The Labrador then jumped up and placed its forepaws on Ms. Davis's body—a habit Ms. Leandra conceded she was trying to break the dog of—which startled her and caused her to stumble backwards and fall onto the driveway 6 to 10 feet below.

Houlihan is now seeking summary judgment because Ms. Leandra was in control of the dogs and the Premises, thus, she bears sole responsibility for Ms. Davis's accident. Westchester and Mr. Malawer are seeking summary judgment because they were not the proximate cause of Ms. Davis's accident, and did not owe either Ms. Davis or Ms. Leandra a duty of care, respectively. Ms. Leandra opposes these applications on the grounds that Houlihan was negligent and careless in scheduling the showing while Ms. Leandra's dogs were present, and that Mr. Malawer failed to alert Ms. Davis that the dogs were present.

"Foreseeability of harm does not define duty. Absent a duty running directly to the injured person there can be no liability in damages, however careless the conduct or foreseeable the harm." 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 NY2d 280, 289. (citations omitted). [*3]

The existence and scope of a tortfeasor's duty is a legal question for the courts, which fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability. At its foundation, the common law of torts is a means of apportioning risks and allocating the burden of loss. In drawing lines defining actionable duty, courts must therefore always be mindful of the consequential, and precedential, effects of their decisions.

532 Madison Ave. Gourmet Foods, Inc., 96 NY2d at 288-89.

[A]n 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 propensitiesalbeit only when such proclivity results in the injury giving rise to the lawsuit.

Collier v. Zambito, 1 NY3d 444, 447. "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'." Id. at 446. (citations omitted). "Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities." Id. at 448. (citations omitted); see also Williams v. NY, 306 AD2d 203, 206 (holding that "[a] property owner owes a duty to protect third persons from injury by an animal only where it has control of the premises or other capability to remove or confine the animal"); Joe v. Orbit Indus., 269 AD2d 121, 122 (holding that "[i]n the absence of a showing that [a party] owned or controlled the dog or the premises where the dog was kept [that party] cannot be held liable" for injuries caused by that dog) (citations omitted).

Based on the above, the only party that owed a duty of care to Ms. Davis was Ms. Leandra. It is undisputed that Ms. Leandra owned and controlled the dogs, and the Premises at the time the accident occurred. Ergo—regardless of when the showing was actually supposed to occur or whether Mr. Malawer alerted Ms. Davis to the presence of dogs within the Premises—Ms. Leandra was the only party with the "capability to remove or confine" her dogs at the time the accident occurred.

It is also undisputed that she was the only one of the above-named parties that was aware of her dog's ability to open the rear screen door and propensity to jump up on people as a greeting. Consequently, she may be found to be strictly liable for Ms. Davis's injuries. Although contribution may still be available in the face of this strict liability, "it is nonetheless true that the existence of some form of tort liability is a prerequisite to application of [CPLR § 1401]." Board of Education v. Sargent, Webster, Crenshaw & Folley, 71 NY2d 21, 28. Since this Court has found that none of the Third-Party Defendants owed a duty of care to either Ms. Davis or Ms. Leandra, no liability may inure to those parties. See Nassau Roofing & Sheet Metal Co. v. [*4]Facilities Dev. Corp., 71 NY2d 599, 603. As such, there is no basis to seek contribution from these parties.

The foregoing shall constitute the decision and order of this Court.

Dated: _June 10, 2010________________J.S.C.

APPEARANCES:

Young & Bartlett

Attorney for Plaintiffs

DORCAS DAVIS and DELROY DAVIS

81 main Street-Suite 118

White Plains, New York 10601

(914) 285-1500

Ahmuty, Demers & McManus, Esqs.

Attorney for Defendant/Third-Party Plaintiff

WHITNEY R. LEANDRA

200 I.U. Willets Road

Albertson, New York 11507

(516) 294-5433

Law Offices of Thomas K. Moore

Attorneys for Third-Party Defendant

HOULIHAN LAWRENCE, INC.

701 Westchester Ave., Suite 101W

White Plains, New York 10604

(914) 295-8500

Hersh & Hersh, P.C.

Attorneys for Third-Party Defendant

BARRY MALAWER

2 So. Division Street

Peekskill, New York 10566

(914) 737-0270