Ciliotta v Ranieri
Annotate this CaseDecided on December 10, 2014
Supreme Court, Kings County
Lawrence Ciliotta, Plaintiff,
against
Frank Ranieri, MARILYN RANIERI DANIELLE RANIERI and NICOLE RANIERI, Defendants.
1965/2012
Plaintiff was represented by Anthony M. Deliso, Esq., Bisogno & Meyerson, LLP, Brooklyn, NY; Defendants, Frank Ranieri, Marilyn Ranieri, Danielle Ranieri and Nicole Ranieri were represented by James J. Toomey Esq., Law Office of James J. Toomey, New York, NY.
Sylvia G. Ash, J.
Defendant moves for summary judgment pursuant to CPLR §3212, dismissing Plaintiff's complaint. Plaintiff opposes and cross-moves for summary judgment on grounds of strict liability. For the reasons set forth below, Defendant's motion for summary judgment is GRANTED and Plaintiff's cross-motion is DENIED.
Background
This is an action by Plaintiff to recover for personal injuries allegedly sustained as a result of a dog bite. Plaintiff has discontinued the action against Defendants Frank Ranieri, Marilyn Ranieri, and Danielle Ranieri.
On April 14, 2011, Defendant Nicole Ranieri ("Ms. Ranieri") was walking her dog, with her friend and her friend's two children. Ms. Ranieri stopped on the sidewalk in front of Plaintiff's house. Plaintiff testified at his Deposition that while standing in his driveway, he saw Ms. Ranieri with her dog on a leash. Plaintiff further testified that Ms. Ranieri initiated a conversation with him by asking him what he was looking at and if he had a problem. A verbal altercation that lasted for about 10 minutes ensued. Thereafter, Plaintiff went to the side of his house to get his hose to water the grass.
Plaintiff testified that Ms. Ranieri and her dog may have gotten wet while he was watering the grass. Ms. Ranieri then walked down the block. Several minutes later, Ms. Ranieri came back down the block, threw a bag of dog excrement at Plaintiff and ran up the block. Plaintiff picked up the bag and followed Ms. Ranieri. Shortly thereafter, Ms. Ranieri's dog bit Plaintiff. Ms. Ranieri alleges that her dog came to her defense after Plaintiff chased and started to choke her. Plaintiff maintains that he does not remember choking Ms. Ranieri, but remembers approaching and touching her.
Ms. Ranieri now brings the instant motion for summary judgment on the grounds that Plaintiff cannot show that she knew or should have known that her dog had vicious propensities. At her Deposition, Ms. Ranieri testified that her dog never growled at, bit or attacked anyone before the subject incident. Further, Ms. Ranieri's parents submitted affidavits corroborating her testimony that the dog is friendly, affectionate, and that it has never bitten anyone other than Plaintiff.
In response and in cross-moving for summary judgment, Plaintiff argues that Ms. Ranieri knew of her dog's vicious propensities, and therefore, Ms. Ranieri should be held strictly liable for his injuries. To support his position, Plaintiff proffers a New York City Department of Health and Mental Hygiene Report ("Report") purporting to show that Ms. Ranieri's dog bit someone in August 2010. However, in response, Ms. Ranieri argues that the Report constitutes inadmissible hearsay because it has not been certified or authenticated for its truth or accuracy. Additionally, Ms. Ranieri points to the lack of information in the Report regarding the alleged incident. Further, Ms. Ranieri argues that the alleged incident in the Report involved another dog that she had previously owned, who has since passed away.
DiscussionIt is well established that the owner of a domestic animal is strictly liable for harm caused by that animal, if the owner knows or should have known of the animal's vicious propensities (Collier v Zambito, 1 NY3d 444, 446 [2004] citing Hosmer v Carney, 28 NY 73 [1920]). 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" (see Collier v Zambito, 1 NY3d at 446 [2004]). Knowledge of vicious propensities may be established by proof of prior acts of a similar kind of which the owner had notice (see Collier v Zambito, 1 NY3d at 446 [2004]). Evidence tending to demonstrate an animal's vicious propensities may include a prior attack, a tendency to growl, snap, or bare its teeth, the manner in which the animal was restrained, the fact that the animal was kept to guard the premises, and a proclivity to act in a way that puts others at risk of harm (Bard v Jahnke, 6 NY3d 592, 597 [2006]). New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal (Egan v Hom, 74 AD3d 1133 [2d Dept 2010] citing Petrone v Fernandez, 12 NY3d 533 [2009]).
In the case at bar, to be entitled to summary judgment, Defendant must show that she did not have actual or constructive knowledge of the dog's vicious propensity prior to the incident (Christian v Patco Animal Supplies Stores, Inc., 54 AD3d 707, 708 [2d Dept 2008] citing Galgano v Town of N. Hempstead, 41 AD3d 536 [2d Dept 2007]). In Christian v Patco Animal Supplies Stores, Inc. ([42 AD3d at 708]) the Second Department granted Defendant's motion for summary judgment because the Defendant proffered evidence which showed that the dog had never bitten anyone and exhibited [*2]aggressive behavior. Similarly, in Galgano v Town of N. Hempstead (41 AD3d 536 [2007]) the court granted Defendant's motion because the evidence showed that the dog did not act in a manner consistent with a dog possessed of vicious propensities. However, in Dykeman v Heht (52 AD3d 767, 769 [2008]), the court found that the Plaintiff raised an issue of fact sufficient to satisfy its burden because the evidence showed the dog had growled, barked, snarled, and bared its teeth at the victim on prior occasions before the alleged bite.
Here, as in Christian and Galgano, Ms. Ranieri presented evidence which showed that, prior to the subject incident, her dog did not have vicious propensities. Ms. Ranieri's Deposition testimony and the affidavits submitted by Ms. Ranieri's parents show that the subject dog did not bite anyone prior to Plaintiff and did not otherwise display any vicious propensities. Therefore, Ms. Ranieri established her prima facie entitlement to summary judgment.
In opposition, Plaintiff failed to raise a triable issue of fact. Unlike the Plaintiff in Dykeman, Plaintiff did not provide any testimony which showed that Ms. Ranieri's dog had vicious propensities. Further, the Court agrees with Ms. Ranieri and finds that the Report submitted by Plaintiff does not constitute competent evidence. The Report has not been certified or authenticated for its truth or accuracy and fails to provide sufficient information regarding the previous incident. Furthermore, Ms. Ranieri maintains that the prior incident involved a different dog that she owned at the time, who has since passed away.
Lastly, the evidence shows that the subject dog bit Plaintiff as a reaction to Plaintiff's physical proximity and manner towards its owner, Ms. Ranieri. Dogs are universally recognized as a man's (in this case a woman's) best friend. This designation necessarily indicates that a dog will act towards its owner in a manner consistent with that of a close companion. Dogs are known to be very protective of their owners and often come to their defense when they believe that their owners are about to be, or are threatened by others. This case is not a situation where the dog, without any provocation displayed aggressive behavior. It is undisputed that the dog bit Plaintiff after Plaintiff, admittedly approached and touched Ms. Ranieri. Therefore, Plaintiff cross-motion for summary judgment is denied.
Accordingly, the motion for summary judgment by Nicole Ranieri is GRANTED.
This constitutes the Decision and Order of the Court.
E N T E R,
_________________________
Sylvia G. Ash, J.S.C.
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