Myers v Lobman

Annotate this Case
[*1] Myers v Lobman 2018 NY Slip Op 51327(U) Decided on September 14, 2018 Supreme Court, Suffolk County Rebolini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2018
Supreme Court, Suffolk County

Deborah Myers, Plaintiff,

against

Matthew Lobman and Marjorie Lobman, Defendants.



610792/2015E



Attorney for Plaintiff:

Law Office of Charles Bonfante

1355 Motor Parkway

Hauppauge, NY 11749

Attorney for Defendants:

Varvaro, Cotter & Bender

1133 Westchester Avenue, Suite S-325

White Plains, NY 10604
William B. Rebolini, J.

Upon the E-file document list numbered 34 to 62 read on this application by defendants Matthew Lobman and Marjorie Lobman for an order pursuant to CPLR 3124 and 3126 compelling plaintiff to comply with defendants' discovery notices and demands (Motion Sequence 003) and on the application by defendants Matthew Lobman and Marjorie Lobman for an order granting them summary judgment dismissing the complaint pursuant to CPLR 3212 (Motion Sequence 004) and on the application by plaintiff for summary judgment on the issue of liability pursuant to CPLR 3212(Motion Sequence 005); it is

ORDERED that the motion by defendants Matthew Lobman and Marjorie Lobman for summary judgment dismissing the complaint is granted (CPLR 3212); and it is further

ORDERED that the motion by defendants Matthew Lobman and Marjorie Lobman to compel plaintiff to comply with defendants' discovery notices and demands is denied as academic; and it is further

ORDERED that the cross-motion by plaintiff for summary judgment against defendants on the issue of liability is denied.

This is an action seeking damages for personal injuries allegedly sustained as a result of a dog bite. The action was commenced by the filing of a summons and complaint on October 8, 2015. Issue was joined by the service of an answer on October 26, 2015. Plaintiff served a verified bill of particulars dated August 18, 2016. Plaintiff alleges that on May 2, 2015 she was bit by a dog named Bronson, allegedly owned by defendants. Plaintiff's examination before trial was held on March 13, 2017. On August 1, 2017, the examinations before trial of defendants were conducted. Defendants move for summary judgment dismissing the complaint and plaintiff cross-moves for summary judgment in her favor on the issue of liability. In support of their motion for summary judgment, defendants submit an affirmation of counsel, a copy of the pleadings, plaintiff's verified bill of particulars, the certified transcripts of the deposition testimony of the parties to this action and the ownership papers of the subject dog Bronson. In [*2]support of the cross-motion, plaintiff submits an affirmation of counsel, an affidavit of Brianna Myers, and Chapter 103 of the Code of the Town of Oyster Bay. Plaintiff otherwise incorporates Exhibits A through G appended to defendants' moving papers. The court notes that while the deposition transcripts of the parties are unsigned, they were certified by the stenographer and their accuracy has not been challenged. Accordingly, the transcripts are admissible (see Thomas v City of New York, 124 AD3d 872, 2 NYS3d 578 [2d Dept 2015]; Pavane v. Marte,109 AD3d 970, 971 NYS2d 562 [2d Dept. 2013]).

Plaintiff testified that the subject dog named Bronson came to live in her home sometime in February or March of 2015, that Bronson came to live at her home at the request of her daughter Brianna, who was the girlfriend of defendants' son, Jeff Lobman. Plaintiff testified that she only agreed to take Bronson for a month at a time and never agreed to take him permanently, and that Bronson lived at her home continuously and exclusively from either February or March of 2015 up until the date of the incident on May 2, 2015, a period of about three (3) months. Plaintiff further testified that while Bronson was at her home, the entire family fed the dog, that Bronson ate out of the same dog dish with plaintiff's other three dogs, that during those meal times there was never an issue with Bronson and her other dogs, and that Bronson stayed in Brianna's room in her house but otherwise "he had roam of the entire place." Plaintiff further testified that defendants did not visit Bronson during the time that Bronson resided at her home, and she never contacted the defendants about Bronson while he was living at her home. She also never contacted Jeff Lobman, the purported owner of the dog at any time but only communicated to her daughter Brianna about Bronson. Further, the defendants never appeared at plaintiff's home during the months that Bronson resided there. Defendant Matthew Lobman testified that his son Jeff purchased Bronson and had Bronson trained but that there were times that Bronson stayed with at his home. Mr. Lobman further testified that during the fall of 2014, Jeff transferred to Farmingdale College and he lived at the Lobman home with Bronson. Defendant Matthew Lobman further testified that there was an incident with Bronson in October or November of 2014 involving his wife, Marjorie Lobman, which resulted in them taking Bronson to the veterinarian, at which time Brianna Myers agreed to bring Bronson to live at the home of her parents where she resided. Defendant Marjorie Lobman testified that after the incident with Bronson sometime in October or November of 2014, she brought Bronson to the veterinarian, that Bronson left the Lobman household at that time, and that Brianna Myers then picked up Bronson from the veterinarian so that he could live with her at the home of her parents.

Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 413 NYS2d 141 [1978]; Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131 [1974]). It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 925 [1986]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316, 318 [1985]). Further, the credibility of the parties is not an appropriate [*3]consideration for the Court (S.J. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141 AD2d 636, 637, 529 NYS2d 797, 799 [2d Dept 1988]). Once a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., supra). However, conclusory allegations unsupported by competent evidence are insufficient to defeat a summary judgment motion (Alvarez, supra, 68 NY2d at 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572). Further, a party may not, through an affidavit submitted on summary judgment, contradict his or her own deposition testimony in order to feign an issue of fact (Freiser v Stop & Shop Supermarket Co., LLC, 84 AD3d 1307, 923 NYS2d 732 [2d Dept 2011]; Andrew T.B. v Brewster Cent. School Dist., 67 AD3d 837, 889 NYS2d 240 [2d Dept 2009]; Knox v United Christian Church of God, Inc., 65 AD3d 1017. 884 NYS2d 866 [2d Dept 2009]; Abramov v Miral Corp., 24 AD3d 397, 805 NYS2d 119 [2d Dept 2005]). Where a feigned factual issue is designed to avoid the consequences of an earlier admission (see McGuire v. Quinnonez, 280 AD2d 587, 720 N.Y.S.2d 812 [2001]), it is insufficient to defeat summary judgment (see Israel v. Fairharbor Owners, Inc., 20 AD3d 392, 798 N.Y.S.2d 139 [2005]).



To recover in strict liability [FN1] in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities (Petrone v. Fernandez,12 NY3d 546, 883 NYS2d 164 [2009] and cases cited therein; Ioveno v Schwartz,139 AD3d 1012, 1012, 32 NYS3d 297 [2d Dept 2016]). It is well established, however, "that liability will not be imposed when there is no evidence that the defendant owned, possessed, harbored, or exercised dominion and control over the dog" (Powell v. Wohlleben,256 AD2d 396, 681 NYS2d 580 [2d Dept. 1998] and cases cited therein) and where the defendant "did not permit it to be on or in his or her premises" (Matthew H. v. County of Nassau,131 AD3d 135, 144, 14 NYS3d 38 [2d Dept. 2015]). "Although the term 'harboring' lacks a clear singular definition, one harbors a dog by 'making it part of his or her household, even if he or she does not assume control over the animal" (Matthew H. v. County of Nassau,131 AD3d at 145, 14 NYS3d at 46; see also Code of Town of Oyster Bay §103-24 (harbor defined as "to provide food or shelter to any dog")). "Thus, while the occasional presence of a dog in a premises does not rise to the level of harboring, where a dog is kept within a home on a consistent enough basis to become part of a household, it can be found that those who do not own the dog, but allow it to reside there and participate in its care, are harboring the dog" (Matthew H. v. County of Nassau,131 AD3d at 145, 14 NYS3d at 46).

Here, defendants have established, prima facie, that at the time of the incident, they did not harbor the dog Bronson but rather, the dog was being harbored by plaintiff at her home. From [*4]at least March of 2015 through May 2, 2015, plaintiff and her family were caring for Bronson on a daily basis, plaintiff fed Bronson with her other dogs, plaintiff allowed Bronson to sleep at her home with her other dogs and allowed Bronson to roam about her entire house. Plaintiff made no attempt to contact Jeff Lobman, the dog's owner, nor did she ever contact the defendants, the parents of Jeff Lobman, in regards to the care of Bronson or to request that they retrieve Bronson from her home. At the time of the incident, plaintiff was harboring Bronson by providing him with food and shelter (Matthew H. v. County of Nassau,131 AD3d at 145, 14 NYS3d at 46). For all intents and purposes, Bronson was a member of plaintiff's household at the time of the incident. Moreover, defendants relinquished any dominion or control of Bronson when they brought him to the veterinarian. Indeed, defendants "did not permit [the dog] to be on or in [their] premises" (Matthew H. v. County of Nassau, 131 AD3d 135, 144, 14 NYS3d 38 [2d Dept. 2015]).

Plaintiff opposes the motion and cross-moves for summary judgment on liability. Plaintiff initially argues that defendants' motion is procedurally flawed in that no affidavit was provided to the court in support thereof. However, it is well established that annexing deposition transcripts to an attorney's affirmation is sufficient documentary evidence on a motion for summary judgment (see Alvarez v. Prospect Hospital,68 NY2d 320, 508 NYS2d 923 [1986]; Woods v. Zik Realty Corp.,172 AD2d 606, 568 NYS2d 146 [2d Dept. 1991]). As to the merits, plaintiff submits an affidavit of her daughter Brianna Myers, who avers that Jeff Lobman purchased Bronson and that "at the time Jeff bought the dog, he lived with his parents, Matthew Lobman and Marjorie Lobman." Brianna further asserts that "Bronson first came to stay with my family in early March of 2015...my mother and father agreed only to let Bronson stay for a few weeks until the Lobmans found him a permanent home....[w]e just did the Lobmans a favor." Plaintiff testified that she never agreed to take in Bronson permanently. After the incident with Bronson, plaintiff testified that she told her daughter Brianna "just get him out of the house." Plaintiff asserts that defendants are liable for her alleged injuries because they had harbored Bronson and as stated in her attorney's affirmation "she only agreed to take in Bronson for a month, as a favor to her daughter's boyfriend and his family who were fed up with the dog."

Here, plaintiff has not raised any triable issue of fact which would defeat defendants' entitlement to summary judgment (Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The uncontroverted evidence is that defendants took the dog Bronson out of their home and brought him to the veterinarian, that Brianna Myers, plaintiff's daughter, picked up Bronson from the veterinarian and brought Bronson to live with her and her parents, and that plaintiff and her family cared for the dog Bronson from March of 2015 until May 2, 2015, the date of the incident. The undisputed evidence further establishes that from March of 2015 through the date of the incident on May 2, 2015, Bronson lived with, resided at, and was cared for exclusively by the plaintiff and members of her family, that Bronson ate out of the same dog bowls as plaintiff's other dogs, that Bronson slept in plaintiff's home with her other dogs, that at no time prior to the incident did plaintiff contact the defendants about removing Bronson from her home, and that defendants never went to her home to visit Bronson nor did they have any contact with plaintiff [*5]during the time that Bronson resided there. The evidence firmly shows that Bronson resided exclusively with plaintiff and her family without any contact with defendants from March 2015 through the date of the incident. The evidence clearly demonstrates that the defendants ceased harboring Bronson when they relinquished control of him by leaving him with the veterinarian. That Bronson temporarily resided with defendants previously, that their son, Jeff Lobman, had Bronson trained, micro-chipped, and neutered, and that defendants may have paid for Bronson's veterinarian bills months prior to Bronson's arrival at plaintiff's home, is of no significance. The undisputed evidence demonstrates that plaintiff was harboring Bronson at the time of the incident, of her own free will, and with her consent. Thus, this Court finds, as a matter of law, that at the time of the incident, plaintiff and her family completely harbored Bronson, and as such, the defendants cannot be liable for any alleged injuries sustained by plaintiff (Matthew H. v. County of Nassau,131 AD3d 135, 144, 14 NYS3d 38 [2d Dept. 2015]; Powell v. Wohlleben,256 AD2d 396, 681 NYS2d 580 [2d Dept. 1998]).

Accordingly, defendants' motion for summary judgment dismissing the complaint against them is granted. Plaintiff's cross-motion is denied and defendants' motion to compel discovery is denied as academic.



Dated: September 14, 2018

HON. WILLIAM B. REBOLINI, J.S.C. Footnotes

Footnote 1:In cases brought by plaintiffs who are attacked or threatened by dogs, strict liability is the only kind of liability that one who owns or harbors a domestic animal may face. Negligence "is no longer a basis for imposing liability" (Petrone v. Fernandez,12 NY3d 546, 550, 883 NYS2d 164 [2009]; see also Hastings v. Sauve,21 NY3d 122, 967 NYS2d 658 [2013]).