B.S. v Sanchez
Annotate this CaseDecided on September 8, 2023
Supreme Court, Suffolk County
B.S. an Infant by Her Parent and Natural Guardian, Matthew S., Plaintiff,
against
Susana D. Sanchez, Ivonne E. Ullauri, Defendants.
Index No. 619636/2021
ATTORNEY FOR PLAINTIFF
Law Offices of Zemsky & Salomon, P.C.
Michael L. Salomon, Esq.
33 Front Street, Suite 207
Hempstead, NY 11550
ATTORNEY FOR DEFENDANTS
Law Offices of Rothenberg & Romanek
Thomas G. Carton, Esq.
200 Garden City Plaza, Suite 400
Garden City, NY 11530
Paul M. Hensley, J.
Upon the following papers read on defendants' motion for summary judgment in their favor pursuant to CPLR § 3212 on the issue of liability: NYSCEF documents 1 thru 36; it is
ORDEREDdefendants' motion to for summary judgment in their favor on the issue of liability pursuant to CPLR § 3212 is denied.
Plaintiff, B.S., a then nineteen (19) month-old child, seeks damages for personal injuries, including a bit to her face resulting in "17-18 stitches one centimeter from her eye," allegedly sustained by the infant on November 23, 2017, as a result of a dog bite at Clinton Avenue, Ossining, New York. A summons and complaint was filed on November 5, 2021. Issue was joined on December 3, 2021. Discovery is complete. A Note of Issue was filed on March 23, 2023. Defendants' now timely move for summary judgment in their favor on the issue of liability. In support of the motion, defendants submit, among other things, an affirmation of counsel, a memorandum of law, their own deposition testimony and the deposition testimony of Matthew S., the child's father. Defendants maintain "there is no evidence that the owner had knowledge of any prior vicious propensity" of the dog," Shakira." Shakira was a "little female dog," "two and one half years old" at the time of the incident. Shakira's breed is half "Cocker Spaniel and King Charles Spaniel." In opposition to the motions, plaintiffs submit, among other things, an affirmation of counsel, the deposition transcript of Matthew S. and an affidavit of Matthew S.
On November 23, 2017, the parties celebrated Thanksgiving Day together. Ivonne Ullauri testified that she lived at 11 Clinton Avenue, Ossining, New York with her mother, her boyfriend, her stepfather, two cats and a dog, Shakira. She testified that she never had any issues with the dog. The dog was never aggressive with the groomer, at parks, or wherever she would take her. Ullauri testified that the dog did not bark or growl at people, and that he never went after animals. She testified that when plaintiff arrived there were no signs of aggression, there were no issues with Matthew S., and plaintiffs never asked to have the dog put in a cage or kennel. Ullauri, who works as a paralegal for a law firm, testified that there were no dangerous dog proceedings before the incident, there were no prior incidents, or police reports. She testified that the dog did not bark or growl at any guest before the bite. She did not hear the dog bark or growl at the child.
Likewise, Susanna Sanchez testified that the dog had no problems of aggressiveness with [*2]the veterinarian, the cats, other dogs, or the mailman. She testified the dog had never bitten anyone before, never growled or got aggressive with anyone who came to the house. She testified that the dog did not show aggression against any of the guests on Thanksgiving Day.
Matthew S. testified at his examination before trial that when he arrived at the house the dog "was being a little jumpy, a little excited." He testified when he was in the T.V. room the dog got "a little snippy" and he asked them to put the dog away and "they were like, no, no its fine." When asked to explain "snippy" he testified, "the dog got a little, a little growled, growled at me a little bit, a little aggressive, but nothing that kind of jumped up at me. Just all excited, kind you know, it made me, you know ask them if they could put it in the kennel. I noticed they had a cage for it."
A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923 [1986]). Failure to make such showing requires 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 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (Vega v Restani Constr. Corp., 18 NY3d 499, 942 NYS2d 13 [2012]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of NY & N.J., 29 NY3d 27, 52 NYS3d 68 [2017]). The opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Stonehill Capital Mgmt., LLC v Bank of the West., 28 NY3d 439, 448, 45 NYS3d 864 [2016] (quoting Alvarez v Prospect Hosp., 68 NY2d at 324, 508 NYS2d 923). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339, 937 NYS2d 157 [2011]). On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (S.J. Capelin Associates v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 AD2d 595, 559 NYS2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned or speculative and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 293 NYS2d 93 [1968]; O'Brien v Port Auth. of NY & N.J., 29 NY3d 27, 52 NYS3d 68 [2017]; Columbus Trust Co. v Campolo, 110 AD2d 616, 487 NYS2d 105 [2d Dept 1985], affd, 66 NY2d 701, 496 NYS2d 425).
"To recover in strict liability 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" (Ioveno v. Schwartz, 139 AD3d 1012, 1012—13, 32 NYS3d 297, 298—99 [2d Dept 2016]; I. A. v Mejia, 174 AD3d 770, 771, 105 NYS3d 103, 105 [2d Dept. 2019]). The sole means of recovery for damages is to produce evidence sufficient to establish strict liability; no recovery is available for ordinary negligence (Bukhtiyarova v Cohen, 172 [*3]AD3d 1153, 102 NYS3d 57 [2d Dept. 2019]; King v Hoffman, 178 AD3d 906, 114 NYS3d 467 [2d Dept 2019]; Petrone, supra; Ostrovsky v Stern, 130 AD3d 596, 13 NYS3d 462 [2d Dept 2015]). An owner of a domestic animal who knows or should have known of its vicious propensities will be liable for damage caused by the animal's exercise of such propensities (Collier v Zambito, 1 NY3d 444, 807 NE2d 254 [2004]; Hai v Psoras, 166 AD3d 732, 87 NYS3d 239 [2d Dept 2018]; Costanza v Scarlata, 188 AD3d 1145, 132 NYS3d 844, [2d Dept 2020]; Petrone v Fernandez, 12 NY3d 546, 883 NYS2d 164 [2009]; Drakes v Bakshi, 175 AD3d 465, 104 NYS3d 701 [2d Dept 2019]). "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" (Collier, supra, quoting Dickson v McCoy, 39 NY 400, 403 [1868]; see also Bukhtiyarova v Cohen, 172 AD3d 1153, 102 NYS3d 57 [2d Dept 2019]; King v Hoffman, 178 AD3d 906, 114 NYS3d 467 [2d Dept 2019]; Drakes, supra; Lina Thai Wong v Largana, 170 AD3d 700, 93 NYS3d 597, [2d Dept 2019]). Evidence of a dog's vicious propensities may be proof of a prior attack; a tendency to growl, snap or bare its teeth; a habit of acting in ways that risk harm to others; the fact of being kept as a guard dog or the occasions and manner in which the animal is restrained (Collier, supra; Feit v Wehrli, 67 AD3d 729, 888 NYS2d 214 [2d Dept 2009]; Lina Thai Wong, supra; Bukhtiyarova, supra; King supra; Bard v Jahnke, 6 NY3d 592, 815 NYS2d 16 [2006]). "Knowledge of an animal's vicious propensities may also be discerned, by a jury, from the nature and result of the attack" (I. A. v Mejia, 174 AD3d 770, 771, 105 NYS3d 103, 105 [2d Dept 2019] quoting Matthew H. v County of Nassau, 131 AD3d 135, 148, 14 NYS3d 38 [2d Dept 2015]; see also Hai v Psoras, 166 AD3d 732, 87 NYS3d 239 [2d Dept 2018]).
Defendants have established a prima facie entitlement to summary judgment based upon the defendant owners lack of knowledge of the dog's prior vicious propensities based upon their own deposition testimony and the deposition testimony of Matthew S. The burden then shifts to the plaintiff to establish the existence of material issues of fact which require a trial of the action (Vega v Restani Constr. Corp., 18 NY3d 499, 942 NYS2d 13 [2012]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). In opposition, plaintiff submits an affidavit of Matthew S., dated April 11, 2019. Matthew S. avers in relevant part:
We arrived at 11 Clinton Avenue, a friend's house on Thursday, November 23, 2017. Upon entering, their dog, Shakira, was aggressively barking, growling (showing its teeth) and jumping at my family and I. I asked Mrs. Susana Sanchez to put him in another room, but they said he just gets excited around new people and brushed it off. Not long after, when we settled in, I was sitting on the floor next to my children and the dog jumped up and snapped at my face, specifically my nose. Again, I requested the owner to put him in another room because I was nervous about the dog but they refused to do so and reassured us the dog was great with children and that she would never do anything. Approximately, one hour later, the dog was laying down and my daughter wanted to approach the dog and they said it was ok. She tried to lean in for a kiss. No abrupt movements. She did not grab the dog or even touch him and the dog snapped at her and viciously bit her below the left eye, without any warning. The dogs (sic) jaw was locked on her face and would not let go. He (sic) held onto her face for 5 minutes until I finally pulled the vicious animal off of her.
Matthew S.'s affidavit raises triable issues of fact. Evidence that a dog, prior to the bite, growled, snapped or bare its teeth, is a triable issue for a jury, as to whether the owners were aware of the propensity for the dog to do any act which might endanger the safety of persons (see Collier v Zambito, supra). Here, there is evidence that the dog barked, growled, jumped and showed its teeth at Matthew S., upon arrival, and a short time later jumped and snapped at his face. S. also brought these concerns to the attention of the defendants, prior to the bite. Contrary to defendants' position in reply, prior means "earlier in time." Prior notice does not necessarily mean days, weeks, or months before the bite. A reasonable juror could determine that the owners' knowledge of the dog's behavior upon arrival of plaintiff and one hour prior to the bite was notice of the dog's vicious propensity on two occasions on Thanksgiving Day, prior to the bite. Accordingly, defendants' motion for summary judgment on the issue of liability is denied as factual issues regarding the dog's propensity for viciousness should be determined by a trier of fact.
E N T E R :
PAUL M. HENSLEY
Hon. Paul M. Hensley
Acting Justice of the Supreme Court
Dated: September 8, 2023
Riverhead, New York
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