Rockitter v Buckowitz

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Rockitter v Buckowitz 2017 NY Slip Op 33525(U) March 17, 2017 Supreme Court, Nassau County Docket Number: Index No. 606693-15 Judge: Daniel Palmieri Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 606693/2015 FILED: NASSAU COUNTY CLERK 03/22/2017 0 ..fa NYSCEF DOC. NO. 30 • RECEIVED NYSCEF: 03/24/2017 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PR E S E N T : HON. DANIEL PALMIERI, J.S.C. ----------------------------------------------------------------------X DAVID ROCKITTER and IVY ROCKITTER, Plaintiffs, -against- TRIAL/IAS PART 16 Index No.: 606693-15 Mot. Seq. 001 Mot. Date:2-14-17 Submit Date: 2-14-17 DENISE BUCKOWITZ and T.J. BUCKOWITZ, Defendants. -------------------------------------------------------------· ---------X The following papers have been read on this motion: Notice of Motion, dated 12-21-16 .................................. l Affidavit in Opposition, dated 2-6-17 ........................... 2 Reply Affirmation, dated 2-13-17 .................................. 3 This motion by the defendants pursuant to CPLR 3212 for an order granting them summary judgment and dismissing the complaint is denied. This is a dog-bite case stemming from an incident that occurred on Septernbei· 4, 2015, at approximately 7:00 a.m. on resi~ential premises. owned by the plaintiffs in Wantagh, New York. According to plaintiff David Rockitter, he walked outside and was on the entryway of his home when he was attacked by a pit bull dog, later_ identified as Bruno. It is undisputed that Bruno lived ?tCross the street with a mother and her adult son, the defendants herein, together with t~e son's sisters and a friend of the mother's. Plaintiff testified that at the time of the attack he _saw the dog on his front lawn and the ' dog then ran up and bit him on the leg in three places, causing the injuries of which he [* 1] 1 of 5 FILED: NASSAU COUNTY CLERK 03/22/2017 NYSCEF DOC. NO. 30 INDEX NO. 606693/2015 RECEIVED NYSCEF: 03/24/2017 complains. Plaintiff then ran back into his house. He further testified that five minutes after the incident he was approached by l defendant T.J. Buckowit z (T.J.), who told him that the dog had been abused by a prior owner, and had been trained to fight. Plaintiff could not recall the exact words, stating that defendant 's statement was "something along those lines." In plaintiffs' Bill of Particulars they claimed that a fostt:r child in defendants' house had abused the dog, but plaintiff testified that he didn't know if the person who had abused the dog was that child or a former owner, and was unaware of when the former owner had lived in the house. Defendan t Denise Buckowitz testified, in substance, that T.J. bought Bruno when the dog was four weeks old, and· that she had never witnessed Bruno acting in an aggressive manner, that he never had bitten any one, and that he was "fine" with' two other dogs living in the house. T.J. testified that he had purchased the dog from a breeder, and was the only person in possession of Bruno from the time of purchase until ' the subject occurrence. The dog had been taken for obedience training, hi~ last session having been "a couple of months" before the incident. The dog was kept in the basement and was allowed outside within a fenced-in area, but on the day of the attack the gate had been left open and when T.J. was taking him outside he ran out through that gate. T.J. ran after the dog to come back to him, but saw him run across the street and bite the plaintiff once. According to T .J ., the plaintiff went back inside but came out dog, at which time . Bruno bit the plaintiff again while T.J. was attempting to secure the ' again. T.J. testified that he had apologized, and told plaintiff that the dog had never done 2 [* 2] 2 of 5 1• FILED: NASSAU COUNTY CLERK 03/22/2017 NYSCEF DOC. NO. 30 INDEX NO. 606693/2015 RECEIVED NYSCEF: 03/24/2017 that before. Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor. CPLR 3212 (b ). This burden cannot be met simply by demonstrating that there are gaps ;1 in the adversary 's case or that a key factu~l claim cannot be established by the motio~ opponent. :! See River Ridge Living Center, LLC v ADL Data Systems, Inc., 98 AD3d · 724 (2d Dept. 2012); see also Calderone v Town of Cortlandt, l 5 AD3d 602 (2d Dept. 2005). In negligence cases, there may be more than one proximate cause of the injury- , causing occurrence (Lopez v Reyes-Flores, 52 AD3d 785 [2d Dept. 2008]), and thus the ·1 proponent of the motion must establish freedom from comparative negligence as a matter . of law. Pollack v Margolin, 84 AD3d 1341 (2d Dept. 2011). Absent this initial:· ,, showing, the court should deny the motion, without passing on the sufficiency of·, the , opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985). If such aprimafac ie case is made, the burden shifts to the non-moving party. To 'I 1 defeat the motion for summary judgment the opposing party must come forward with ' evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR :i 1 3212 (b ); see also GTF Marketing, Inc. v._ Colonial Aluminum Sales, Inc., 66 NY2d 965 :l (1985); Zuckerman v. City ofNew York, 4? NY2d 557 (1980). The court must draw all reasonable inferences in favor of the nonmoving party.· Nicklas v Tedlen Realty Corp., 305 AD2d 385 (2d Dept. 2003); Rizzo v. Lincoln Diner Corp., 215 AD2d 546 (2d Dept. 1995). The role of the court in deciding a motion for . 3 [* 3] 3 of 5 FILED: NASSAU COUNTY CLERK 03/22/2017 :,i; NYSCEF DOC. NO. 30 INDEX NO. 606693/2015 RECEIVED NYSCEF: 03/24/2017 summary judgment is not to resolve issues of fact, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 AD2d 553 (2d Dept. 1992); Barr v County ofAlbany, 50 NY2d 247,254 (1980); James v. Albank, 307 AD2d 1024 , (2d Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 AD2d 330 (2d Dept. 1993). Determinations regarding credibility are not to be made. Guadalupe v New York City Trans. Auth., 91 AD3d 716 (2d Dept. 2012). Further, it is well settled that in order to be held liable for injury caused by an animal, its owner must have had some prior knowledge that it had vicious tendencies. See, e.g., Collier v Zambito, 1 NY3d 444, 447 (2004); Clark v Heaps, 121 AD3d 1384 (3d DepL 2014); Egan v Hom, 74 AD3d 1133, 1134 (2d Dept. 2010); Palumbo v Nikirk, 59 AD3d 691, 692 (2d Dept. 2009); Earl v Piowaty, 42 AD3d 865, 866 (3d Dept. 2007). Upon a review of the record presented, the Comi finds that it is undisputed that Bruno escaped from the area where he was ·supposed to be confined and then attacked and bit the plaintiff. Thus, the key issue is whether the defendants had knowledge of the dog's vicious tendencies beforehand. The Court concludes that the plaintiff's testimony at his deposition as to what T.J. said to him immediately after the attack, which is to be contrasted with that of the defendants, raises issues of credibility regarding the history of the dog and thus defendants' knowledge of any vicious tendencies. Those central discrepancies should not be resolved on this motion. Guadalupe v New York City Trans. Auth., supra. Further, as plaintiff David Rockitter's testimony and that of defendant T.J. Buckowitz w~re submitted with the moving papers, defendants have failed to make out their primafacie 4 [* 4] 4 of 5 ) INDEX NO. 606693/2015 FILED: NASSAU COUNTY CLERK 03/22/2017 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 03/24/2017 case that they are entitled to judgment as a matter oflaw, requiring denial of the motion '• without regard to the strength of the opposing submission. Winegrad v New York Univ. Med. Ctr., supra. All contentions not discussed either are urinecessary to the result reached here or are without merit. All requests for relief not addressed are denied. This shall constitute the Decision and Order of this Comi. ENTER:. ~~~A~ DATED: March 17, 2017 HON. DANIEL PALMIERI Supreme Court Justice Attorneys for Plaintiff Kevin E. Rockitter, Esq. 180 Froehlich Farm Blvd. Woodbury, New York 11 797 Attorneys for Defendants Marty, Toher, Martyn and Rossi 330 Old Country Road, Suite 211 Mineola, New York 11501 ENTERED MAR 2 2 2017 NASSAU COUNTY COUNTY CLERK'S OFFICE t ;}· -J ~~ .,;. Clen.; ., •~ t..F 5 [* 5] - 5 of 5 l

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