Ferrara v Ball

[*1] Ferrara v Ball 2014 NY Slip Op 51773(U) Decided on December 18, 2014 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2014
Supreme Court, Nassau County

Gerard Ferrara and SANDRA FERRARA, Plaintiffs,

against

Alan Ball and WILLIAM ASPARRO, Defendants.



601017/13



Parker Waichman LLP

Attorneys for Plaintiff

6 Harbor Park Drive

Port Washington, NY 11050

(516) 466-6500

Devitt Spellman Barrett, LLP

Attorneys for Defendant, Asparro

50 Route 111, Suite 314

Smithtown, NY 11787

(631) 7248833
Randy Sue Marber, J.

Papers Submitted:

Notice of Motion..............................................x

Affirmation in Opposition................................x

Reply Affirmation.............................................x

Upon the foregoing papers, the motion by the Defendant, WILLIAM ASPARRO, seeking summary judgment pursuant to CPLR § 3212 dismissing the complaint of the Plaintiffs, is determined as hereinafter provided.

In this action, the Plaintiff, GERARD FERRARA, (hereafter "Gerard") seeks to recover damages for personal injuries he sustained on January 26, 2013 when he was bitten by the [*2]Defendant, ALAN BALL's [FN1] dog. The Plaintiff, SANDRA FERRARA, seeks damages for the loss of services of her husband, the Plaintiff, GERARD.

The incident occurred when the Plaintiff, GERARD, was standing at or near the front of 444 Deauville Parkway, Lindenhurst, New York. He described the location of the incident, at his Examination Before Trial ("EBT") on April 3, 2014, as "on my neighbor's driveway, across from my house". (See EBT Transcript attached to the Notice of Motion as Exhibit "D" at p. 9, l.15) He testified that he went onto his neighbor's driveway to speak to the two men sitting in a vehicle parked there about one of them buying his car. This meeting had been set up by his neighbor's son. (Id. at p.10, l. 4, 18) The Plaintiff testified that he was speaking to the passenger of the vehicle in his neighbor's driveway through the driver's side window for a few minutes "when the dog came from behind the back seat and bit me." (Id. at p.16, l. 22-23) Immediately preceding the bite, the Plaintiff was gesturing with his right hand to demonstrate the height water had risen in the car he intended to sell when the dog bit it.

The Defendant, WILLIAM ASPARRO, (hereafter "Asparro") at the time of the incident, was the owner of the premises located at 41 Meade Avenue, Babylon, New York. According to Mr. Asparro, the Defendant, Alan Ball, was his tenant in an apartment above a detached three car garage on the premises. The Defendant, Asparro, testified at his EBT, on April 3, 2014, that he delivered an eviction letter to Mr. Ball's mailbox on or about January 15, 2013 and that Mr. Ball vacated the premises within a day or two thereafter. (See EBT Transcript attached to the Notice of Motion as Exhibit "E" at pp. 28-30)

The moving Defendant claims he is entitled to summary judgment dismissing the complaint predicated on the grounds that the owner of the dog who bit the Plaintiff no longer lived at his property and that the subject incident did not occur at or on the property he owned. The Defendant points out that the incident occurred several miles away from the property he owned.

Initially, it should be noted that the Plaintiffs, in their Complaint, allege that the occurrence was "caused by the negligence of the defendants". (See Complaint attached to the Notice of Motion as Exhibit "A") The court further notes that negligence is not a basis for imposing liability when harm is caused by a domestic animal. In such a situation, liability is determined solely by the application of the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities (Petrone v. Fernandez, 12 NY3d 546, 550 [2009]). To the extent that the Plaintiffs' complaint may be read to assert a claim of common law negligence, such claim is hereby DISMISSED (Ortiz v. Contreras, 53 AD3d 603, 604 [2d Dept. 2008]). New York does not recognize a common law negligence cause of action to recover damages for injuries caused by a domestic animal (Roche v. Bryant, 81 AD3d 707 [2d Dept. 2011] (citations and quotation marks omitted).

Inasmuch as neither party attaches the Plaintiffs' Bill of Particulars, the Court cannot determine if the Plaintiffs allege that the Defendants are liable based upon a theory of strict liability. However, "to recover against a landlord for injuries caused by a tenant's dog on a theory of strict liability, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities, and [*3](3) had sufficient control of the premises to allow the landlord to remove or confine the dog" (Mcknight v. ATA Hous. Corp., 94 AD3d 942 [2d Dept. 2012]; citing Sarno v. Kelly, 78 AD3d 1157, 1157 [2010]; Baisi v. Gonzalez, 97 NY2d 694, 695 [2002]; Strunk v. Zoltanski, 62 NY2d 572, 575 [1984]; Jones v. Pennsylvania Meat Mkt., 78 AD3d 658, 659 [2010]; Bennett v. White, 37 AD3d 630, 630 [2007]; Ali v. Weigand, 37 AD3d 628, 628-629 [2007]; Madaia v. Petro, 291 AD2d 482, 483 [2002]; Bemiss v. Acken, 273 AD2d 332, 333 [2000]).

In support of the Defendant's motion, his counsel argues that the subject dog was not owned by the Defendant, Asparro, and that the Defendant did not harbor the subject dog since the owner and the dog no longer lived at the premises on the day of the incident. Furthermore, counsel for the Defendant, Gerard, argues that his client cannot be held liable for a dog bite incident that occured off the landlord's property.

In opposition, the Plaintiffs' counsel argues that the Defendant/landlord knew that the dog was being harbored on his premises, that the dog had dangerous propensities and that he had sufficient control of the premises to remove the dog. The Plaintiffs' counsel frames the issue as whether the dog and the Defendant, Alan Ball, were being housed on the Defendant, Gerard's property at the time of the incident. The Plaintiffs' counsel categorically argues that the Courts of the State of New York have "consistently held that a landlord may be held liable for injuries caused by a dog harbored on the landlord's premises even if the incident in question occurred off the premises as long as the landlord had notice that the dog was on the property, knew or should have known of the dog's vicious propensities, and had sufficient control of the premises to remove or confine the dog". (See Affirmation In Opposition at ¶ 17)

In support of his legal argument, the Plaintiffs' counsel cites several cases. The moving Defendant's counsel, in his Reply Affirmation, states that "none of the Court of Appeals cases cited by counsel reaches such a determination". (See Reply Affirmation at ¶ 8) Additionally, the Defendant's counsel argues that the other cases relied on by the Plaintiffs' counsel can be distinguished from the facts in the instant matter in that the dog bite incidents in those cases involved dogs that escaped from the dog owners' leased premises.

The moving Defendant's counsel cites several cases in support of the proposition that a landlord owes no duty of care and cannot be held liable for a dog bite incident that occurred off the landlord's leased premises. (Id. at ¶ 14)

This Court has carefully reviewed of all the cases cited by the Plaintiffs and the moving Defendant in support of their respective arguments. None of the cases relied on by the Plaintiffs supports the Plaintiffs' argument that the Defendant/landlord owes a duty to the Plaintiffs for a dog bite that occurred several miles from the property owned by the moving Defendant that did not result from any failure on the part of the Defendant/landlord to have properly secured his premises to prevent the dog from escaping. It is undisputed that the dog was in its owner's car at the time of the incident and clearly did not escape from the property the Plaintiffs allege it was harbored in. This Court need not determine whether the Defendant, Alan Ball, was still living at the Defendant, Asparro's premises. In contrast, the cases cited by the moving Defendant clearly establish that the Defendant/landlord owed no duty to the Plaintiffs for the instant incident.

The drastic remedy of summary judgment should only be granted where there are no material issues of fact (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). Where there is any doubt as to the existence of a triable issue of fact, or if such an issue is even arguable, summary judgment [*4]must be denied (Phillips v. Kantor & Co., 31 NY2d 307, 311 [1972]). As a matter of law, the Defendant, Asparro, is entitled to summary judgment. The Plaintiffs have completely failed to raise the existence of any triable issue of fact.

Accordingly, it is hereby

ORDERED, that the Defendant's motion for summary judgment is GRANTED and the Plaintiffs' Complaint is DISMISSED.

This decision constitutes the Order of the court.

DATED:Mineola, New York

December 18, 2014

______________________________

Hon. Randy Sue Marber, J.S.C.

XXX

Footnotes

Footnote 1:Service on the Defendant, ALAN BALL, has never been effectuated and he has not appeared in this action.