During the past several months our courts, at all levels, have issued a vast and unusual number of decisions relating to the “vicious propensities” of dogs; canine “custody disputes; animal and pet related claims of negligence; and the “three month rule”.
RPDG, LLC v. Kuravsky, 2016 NY Slip Op 50791(U) [App. T. 2d Dept. May 12, 2016]
Appellate Term summarily affirmed, as follows, the judgment of Civil Court, after a bench trial, dismissing the petition:
In this holdover proceeding predicated, . . . on a claim that tenant, Alexander Kuravsky, violated his lease by harboring a dog without landlord’s consent, the Civil Court dismissed the petition after a nonjury trial, finding that landlord’s failure to commence the proceeding within three months of learning of the dog’s presence in the subject apartment constituted a waiver of landlord’s right to enforce the no-pet provision of the lease [ ].
Colombini v. Benitez, 2016 NY Slip Op 31829(u) [Sup. Ct. N.Y. Co. September 30, 2016]
The Court summarized the facts in a dog bite/vicious propensities suit:
In 1993, defendant Mark Saltz “(M. Saltz”) was the prime tenant of apartment 8R located at 118 West 27th1Street, New York, New York (the “Apartment”). The Apartment was owned and leased by defendant 118 West Corporation (“118 West”). The lease agreement between M. Saltz and 118 West did not contain any pet policy. In 2002, M. Saltz moved out of the Apartment so that his son, defendant Sam Saltz (‘‘S. Saltz”), could move in. Although, S. Saltz began paying rent directly to 118 West, M. Saltz remained the prime tenant according to the lease agreement.
In 2006, S. Saltz adopted a pit bull, mixed breed dog from an animal shelter. After the adoption, M. Saltz was aware that the dog resided in his apartment and, in fact, occasionally came to the Apartment to walk and feed it. Both M. Saltz and S. Saltz maintain that the dog was generally mild tempered and they never saw the dog bite, snap, bark, growl, lunge or bare his teeth at anyone.
In early 2008, S. Saltz was offered a job to teach English to children in Korea beginning in March of 2009. In the Fall of 2008, defendant Mijail Benitez (“Benitez”) moved into the Apartment as S. Saltz’ roommate; After a few months, Benitez and S. Saltz reached agreement that Benitez would stay in the Apartment while S. Saltz was in Korea. The agreement included an explicit understanding that Benitez would care for the dog and the Apartment while S. Saltz was in Korea.
In March 2009, S. Saltz went to live temporarily in Korea. At that time, Benitez lived in the Apartment alone while attending classes as a student at The New School. M. Saltz continued to stop by the Apartment to check in on the Apartment and the dog. During this time period, M. Saltz would take care of the dog and would walk and feed it. Benitez maintained that the dog was not vicious and never bit, snapped, barked, growled, lunged or bared his teeth at anyone.
On August 28, 2009, unbeknownst to M. Saltz or S. Saltz, defendant Colello signed a written agreement to sublease from defendant Benitez. Colello then moved into the Apartment and lived with Benitez for approximately three months. Although Colello denies involvement with the dog, while living there, Colello took affectionate pictures with the dog, including hugging and kissing it. These pictures were posted to Facebook, along with other photos of defendant Colello’s friends exhibiting similar affectionate behavior with the dog. Colello also maintained that the dog never bit, snapped, barked, growled, lunged or bared his teeth at anyone.
In late November/early December 2009, Benitez went to his parents’ home in Mexico leaving Colello as the sole occupant of the Apartment. Benitez left his belongings in the Apartment. In the past, Benitez occasionally traveled to his parents’ home and remained there for periods of time. It is undisputed though that from the time that Colello moved in, through Benitez’s travels and December 28, 2009, Colello lived as a co-tenant in the apartment with the dog and, in fact, lived with the dog alone for a month.
Sometime in between Benitez travelling to Mexico and December 28, 2009, M. Saltz went to the Apartment and found defendant Colello sleeping. Colello informed M. Saltz that Benitez had left for Mexico. At that time, M. Saltz did not ask Colello to leave the Apartment. M. Saltz contends that this meeting occurred at the end of November and Colello stated that it occurred in the latter part of December.
- Saltz maintains that Colello contacted him on December 28, 2009, concerning care of the dog. In the same conversation, M. Saltz maintains that Colello told him that Benitez was supposed to have arranged for someone to care for the dog, but no one had come to the apartment to care for the dog since Bentiez’s departure. This alleged conversation is also where Colello informed M. Saltz that she was subletting the Apartment from Benitez. Colello denies having this conversation. However, in an email correspondence between Colello and S. Saltz dated December 29, 2009, Colello confirms that she spoke with M. Saltz regarding an agreement for Colello to remain in the Apartment. The terms of their agreement are unclear.
- Saltz and S. Saltz interpreted Benitez’s actions as an abandonment of his duties with respect to the apartment and the dog and discussed terminating Benitz’s sub-tenancy in the Apartment. M. Saltz maintains that he offered Colello a rent-free tenancy in exchange for taking care of the dog. Colello allegedly expressed concern regarding her ability to adequately care for the dog. As a compromise, M. Saltz offered defendant Colello a “two-day trial period” in which Colello would be given the opportunity to try out the living arrangement to determine whether or not she could adequately care for the dog. Colello denies taking any responsibility for the dog, disputes the existence of a “two-day trial period” and didn’t remember the December 29, 2009 correspondence.
On December 29, 2009, Colello’s high school friend, Erica Colombini (“plaintiff’), visited the Apartment. After about an hour, plaintiff and Colello left and went to a bar named “The Black Door,” where they consumed alcoholic beverages. At around 11 :00 PM, plaintiff and Colello walked back to the Apartment. Upon entering the Apartment, Colello went to sleep in her bed.
At around 12:30 AM on December 30, 2009, plaintiff took a dog treat from the kitchen counter, broke it in half and gave one half to the dog. Plaintiff accidentally dropped the other half of the treat right next to the dog and squatted down to pick it up. At this exact moment, the dog lunged and bit plaintiff, breaking the skin on the right side of her face between her nose and her upper lip. Plaintiff screamed, waking up Colello who rushed to plaintiff, brought plaintiff to the bathroom and called 911. EMS arrived and brought plaintiff to Beth Israel hospital.
While at the hospital, nurses assisted plaintiff and Colello in the creation of an “Animal Bite Report,” which documents the dog’s actions, habits and demeanor. During this time, plaintiff maintains that Colello told the nurses and plaintiff’s mother about two other bite incidents involving this dog. Plaintiff’s mother submits an affidavit in furtherance of plaintiff’s contention. Colello denies saying or having any knowledge about any prior bite incidents. No prior Animal Bite Reports exist for the dog in question. As a result of the bite, plaintiff received 16 external and 3 internal stitches on her face.
The procedural history:
On May 23, 2011, as a result of her injuries from the dog bite, plaintiff brought an action for personal injury against defendants Colello, M. Saltz and S. Saltz. Plaintiff brought a second action against defendants Benitez and 118 West on December 21, 2012. The two actions were consolidated by Justice Mills on June 26, 2013. Additionally, Colello, Benitez, M. Saltz and S. Saltz all seek contribution from one another should liability be granted pursuant to Article 16 of the CPLR.
The applicable law:
In order to recover in strict liability in tort for damages caused by a dog bite, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known about said dog’s vicious propensities. . . Moreover, the knowledge of someone to whom the care and custody of a dog is entrusted is imputed to the dog’s owner[.]
Evidence tending to demonstrate a dog’s vicious propensities includes evidence of a prior attack, the dog’s tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm[.]
However, vicious propensities “cannot consist of behavior that is normal or typical for the particular animal in question”…Therefore, behavior like nervousness or aggressiveness towards other dogs does not necessarily imply viciousness…Additionally, “the particular type or breed of domestic animal alone is insufficient to raise a question of fact as to vicious propensities[.]
Liability also extends to those who harbor or keep the animal with knowledge of its propensity…While the term “harboring” lacks a singular definition, the Court has noted the term’s implicit connection to property[.]
However, simply owning the premises on which the dog resides is not enough to impose liability. Harboring also involves some level of control or dominion[.]
Similar to the doctrine extending liability to “harborers” of vicious dogs, in order for landlords to be held liable for injuries sustained as a result of an attack by a tenant’s dog, “it must be demonstrated that the animal had vicious propensities and that the landlord knew or should have known of these propensities”…Moreover, the Second Department added that, in order to impose liability, the plaintiff would have to show that the landlord “had sufficient control of the premises to allow the landlord to remove or confine the dog”[.]
As to 118 West Corporation:
Defendant 118 West Corporation was clearly the owner and lessor of the Apartment. However, 118 West does not own or control the dog. 118 West was also not aware of any animal living in the apartment. Further, defendant 118 West asserts that there was no evidence from which it could have learned of the alleged vicious propensities of the dog. Finally, defendant 118 West contends it did not have sufficient control over the apartment to remove or confine the dog.
Additionally, neither plaintiff, nor any of the co-defendants have opposed 118 West’s motion for summary judgment. Accordingly, 118 West’s motion for summary judgment is granted.
As to Sam Saltz:
Defendant S. Saltz is the owner of the dog and thereby satisfies the first requirement imposing liability. Although, S. Saltz denies having any knowledge of any vicious propensity of the dog and maintained that the dog never bit, snapped, barked, growled, lunged or bared his teeth at anyone, a triable issue of fact still remains regarding S. Saltz’s liability. During his deposition, S. Saltz also discussed another incident that he was told took place while away and was allegedly related to him by Benitez or M. Saltz. However, S. Saltz was not able to provide any details as to this incident, there was no police or animal bite reports filed and both Benitez, nor M. Saltz denied any such incident. As a result, whether the dog had vicious propensities and if so, S. Saltz’ knowledge thereof remain a genuine issue of material fact in dispute and S. Saltz’s motion for summary judgment must be denied.
As to Mark Saltz:
Defendant M. Saltz was the tenant of record of the Apartment at the time of the attack. Additionally, he frequently visited the Apartment and cared for the dog by feeding it and walking it on multiple occasions. M. Saltz continued to take care of the dog in his son’s absence while the dog was supposed to be taken care of by Benitez. He was the one who arranged the trial-period and was the person to whom Colello would be reporting the results of the trial period. Throughout the relevant time period he participated in the care of the dog or decision making regarding the dog and assented to the maintenance of the dog upon the premises for which he was the tenant. As a result, M. Saltz must be considered a “harborer” of the dog.
However, there is a triable issue of fact with regard to M. Saltz’s knowledge of the dog’s vicious propensities. M. Saltz was in regular communication with his son, S. Saltz about the Apartment while S. Saltz was away. S. Saltz stated that M. Saltz was aware of an alleged prior incident and S. Saltz requested that M. Saltz investigate further. For these reasons, there still remains the question of whether this dog had vicious propensities and whether M. Saltz knew of the alleged vicious propensities. Since there remain triable issues of fact that must be decided by a jury, M. Saltz’s motion for summary judgment must be denied.
As to Mijail Benitez:
Defendant Benitez was not in the apartment at the time of the dog bite and in fact was not even in New York’. However, it remains a question whether or not he remained a co-tenant and a “harborer” at the time of the attack. Benitez was the sole sub-tenant in the Apartment for six months prior to the incident and explicitly accepted responsibility for the dog. In fact, his entire agreement with S. Saltz was premised on this assumption of care and responsibility and he never told S. Saltz or M. Saltz that he had arranged other care. Even though Benitez did not physically live in the apartment for the month of December, it is not clear whether he had abandoned his tenancy in the Apartment. Benitez kept clothes and other belongings there, and prior testimony confirms that defendant Benitez had often vacationed to Mexico for extended periods, eventually returning to New York. In her deposition, Colello stated that she believed that Benitez was returning and Benitez never stated in his deposition that he had told any of the co-defendant that he was leaving. Thus, a question of fact remains whether Benitez could be deemed a harborer under these circumstances.
Additionally, the same facts that raise a question of the Saltz defendants’ knowledge of vicious propensities apply to defendant Benitez. Whether or not there was an attack on a friend of defendant Benitez, that Benitez knew about, also remains an issue of fact to be determined at trial. For the above reasons, and as there still remains the question of whether this dog had vicious propensities, Benitez’s motion for summary judgment must be denied.
As to Michelle Colello:
Defendant Colello undoubtedly did not own the dog and she denies all involvement with the dog. However, several photos and testimony plainly contradict these assertions. Colello was the only person living in the Apartment with the dog for a month, photos of her engaging and interacting with the dog indicates that that she could have controlled or harbored the dog. Moreover, defendant Colello signed a sublease agreement with defendant Benitez, making her a co-tenant of the Apartment. Further, in his deposition, defendant Benitez states that he asked defendant Colello to take care of the dog while he was away. Similarly, M. Saltz and plaintiff both confirm that defendant Colello was caring for the dog at the time of the incident.
However, a triable issue of fact exists regarding defendant Colello’s knowledge of the dog’s vicious propensities. Plaintiff alleges that, while at the hospital, defendant Colello told plaintiffs mother and the nurses about two prior bite incidents. Defendant Colello denies saying anything about any prior incidents and the nurse reports fail to mention anything about prior bites. Because, Colello cannot establish that she did not harbor the dog and there remains an issue of fact whether this dog had vicious propensities that she knew about, Colello’ s motion summary judgment must also be denied.
As to Erica Colombini:
Plaintiff has established that M. Saltz was the tenant of the Apartment and was involved in the care of the dog. While Colello contests the existence of a two-day trial period and other contact with M. Saltz, it is undisputed that for nearly a month prior to the alleged assumption of a trial period, Colello lived alone in the Apartment with the dog and signed a sublease agreement, making her a co-tenant of the Apartment. Thus, both M. Saltz and Colello are harborers of the dog, and plaintiff is granted is summary judgment on this issue. Similarly, plaintiff is granted summary judgment on the fact that S. Saltz is the owner of the dog. However, plaintiff has not established (1) that the dog had vicious propensities, and (2) which defendants, if any, had prior knowledge of the dog’s alleged vicious propensity. Thus, the remainder of plaintiffs motion is denied.
Finally, because there remain questions as to which defendant had knowledge of any alleged prior incidents and which defendant actually had the ultimate responsibility over the dog vis-a-vis each other, there remain genuine issues of material facts in dispute regarding the cross-claims for contribution.
Waldman v. Sangiray, 2016 NY Slip Op 26274 [Sup. Ct. Na. Co. August 30, 2016]
As a preamble Supreme Court stated:
“Barking and running around are what dogs do.” So observed the Court of Appeals in Collier v. Zambito, 1 NY3d 444 (2004). Such behavior, consistent with normal canine activity, is not threatening or menacing and does not reflect a proclivity to act in a way that puts others at risk of harm. . . . But what about jumping up on people? As many puppy owners will attest, dogs are inclined to do that too. Is this type of behavior evidence of “a vicious” propensity sufficient to hold a dog owner strictly liable for any injury that might result? That is the issue in this motion for summary judgment brought by defendant, Engin Sangiray.
Outlined the facts:
On the afternoon on June 8, 2012, Jacqueline Waldman, then 82 years old, was walking with her three year old grandson in her Hewlett Harbor neighborhood. During the course of her walk she reached Sangiray’s property. What happened next is disputed, but the court will credit Waldman’s version of the facts, as required, for purposes of determining Sangiray’s summary judgment motion[.]
When Waldman and her grandson passed Sangiray’s home, her grandson took one step up onto a “little slope” onto Sangiray’s property…Waldman “put [her] foot on Sangiray’s grass” because she “wanted to pull” her grandson off the grass…Mrs. Waldman does not recall hearing any growling, barking, or the jangling of a dog collar before Louie, Sangiray’s two-year-old Siberian Husky, came from her right side and “hit” her by placing his paws on both her shoulders. Waldman threw her grandson into some bushes to protect him. Louie’s hit brought Waldman down to the grass on her knees. She stated that she “tried to roll over and [Louie] kept hitting [her].”…She alleges that Louie rolled her over onto her back with his front paws and then remained in contact with her for an entire hour, recalling, “every time I got up he threw me more.”…At some point during the incident, Waldman claims Louie bit her and that she felt Louie’s mouth close around her arm…Waldman was eventually rescued by a passing golfer and Sangiray’s son, who took the dog away. Waldman allegedly sustained several injuries, including inflamed, ruptured and lacerated tendons in her hand and wrist, requiring surgery, and facial cuts.
Summarized the evidence:
There is no evidence in the record that Louie was anything but a friendly, rambunctious family pet, who was mainly kept outside of the home and barked often (Sangiray no longer owns Louie). Louie never had an incident where he growled, bared his teeth, bit, or lunged at anyone. Louie was contained in the Sangiray’s yard by an electronic fence, although he would occasionally be restrained by a 20-foot chain affixed to his dog house when he would dig up the backyard. Louie was not chained on the day of the incident.
Louie did have a habit, however, of jumping up on people—at least his owners—to greet them. Sangiray testified that Louie liked to jump on people to get their attention, “being the friendly dog that he is.”…Sangiray testified that he never observed Louie jumping on strangers, but admitted that he would jump on his in-laws. He could not recall if Louie would jump on his children’s friends when they came to the house. Nonetheless, from Sangiray’s testimony, it would be fair for a jury to conclude that Louie is a friendly jumper. There is no evidence, however, that Louie ever knocked anyone to the ground by jumping on them.
Summarized the applicable law:
Contrary to popular belief, a dog is not “entitled to one free bite” in the State of New York. Instead, for at least 200 years the common law rule in New York has been that the owner of a domestic animal, such as a dog, who either knows or should have known of the animal’s vicious propensities will be held liable for the harm caused by the animal as a result of those propensities…Once such knowledge is established, the dog owner faces strict liability[.]
The rationale for the rule has been explained as follows: one who keeps a dog with dangerous propensities introduces an unusual danger to the community without any positive counterbalance…As a result, even if one has exercised the utmost care to prevent harm to another by their dog, liability is imposed for any injury inflicted consistent with the known dangerous propensity. There is zero tolerance in this regard. The risk of injury from a dog known to have a propensity for causing such an injury is a risk society has deemed unacceptable in all cases.
“Dangerous” propensities as used above is a more apt description of the state of the law than “vicious” propensities, the term historically used in caselaw. This is because “vicious propensities” has been defined to include the “propensity to do any act that might endanger the safety of persons and property of others in a given situation.”… [A]n animal that behaves in a manner that would not necessarily be considered violent or ferocious, but nevertheless reflects a proclivity to act in a way that puts others art risk of harm, can be found to have “vicious” propensities.
Evaluated the evidence:
Which brings us to Louie. The evidence reflects that prior to the incident in question, Louie was not vicious—to the contrary he was a friendly, happy dog who loved people. There is no evidence to support the proposition that Sangiray knew or should have known that Louie would bite anyone. But Louie had a fault: he expressed his happiness and excitement when greeting people by jumping on them, a fault not uncommon in young dogs, but a fault nonetheless. Indeed, hundreds, if not thousands, of websites provide instruction on how to train a dog not to jump on people, and a Google search reflects the popularity of the subject [.]
Dogs are trained not to jump on people for several reasons, but one is that large and medium-sized dogs (like Siberian Huskies) can knock people over and hurt them in the process. Particularly small children and the elderly. As a result, caselaw has recognized that where a dog has demonstrated a propensity to jump on people liability may result for harm caused by such behavior[.]
Concluding that:
Various courts have recognized that jumping may be a “vicious” propensity in a dog…Few cases, however, involve injuries to people actually caused by such jumps, compared to the legions of dog bite cases[.]
Therefore, despite the fact that Louie may never had bitten, growled, or bared his teeth at anyone, Sangiray may be held liable for injuries caused by Louie’s known jumping if found to be a dangerous propensity by a jury. The drastic remedy of summary judgment should only be granted where there are no material issues of fact…Sangiray is not liable, however, for any injury allegedly caused by Louie’s biting. There is no evidence that Louie had this dangerous propensity prior to the unfortunate incident complained of.
Tighe v. North Shore Animal League Am., 2016 NY Slip Op 05807 [App. Div. 2d Dept. August 17, 2016]
The Court outlined the facts:
On May 19, 2012, the plaintiff adopted a dog from an animal shelter, the defendant North Shore Animal League America. At the time of adoption, the defendant’s associate warned the plaintiff that the dog was possessive regarding food. After she brought the dog home, the plaintiff noticed that the dog exhibited aggressive behavior, such as jumping at the backyard fence at passers-by, and growling at her when she attempted to feed it. On July 13, 2012, the dog bit the plaintiff’s hand when she tried to pick up a cookie from the floor. As a result of that bite, which the plaintiff attributed to the dog’s possessiveness regarding food, the plaintiff was hospitalized for three or four days because of blood loss and swelling in her hand. On September 3, 2012, the plaintiff allegedly sustained severe personal injuries when the dog bit her in the face.
The prior proceedings:
[T]he plaintiff commenced this action against the defendant to recover damages only for the injuries caused by the bite on September 3, 2012. She alleged causes of action to recover damages for negligence, breach of the implied warranty of merchantability, and intentional infliction of emotional distress, and interposed a claim for punitive damages. After disclosure, the defendant moved for summary judgment dismissing the complaint. The plaintiff opposed the motion, and submitted evidence that, inter alia, the dog had previously been returned to the defendant after having bitten another person in the face. The Supreme Court granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging intentional infliction of emotional distress, but denied the branches of the motion which were for summary judgment dismissing the causes of action alleging negligence and breach of the implied warranty of merchantability, and the claim for punitive damages [.]
The applicable law:
“For [two hundred] years…the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities”…”If such animal be delivered [by the owner] to another, he [or she] must inform such person of the animal’s vicious characteristics, so far as known, or ascertainable by the exercise of reasonable care. If such information be given, or the person to whom the animal is delivered knows, or before injury ascertains, the vicious character of the animal, the owner is not liable”…The rationale for such rule is self-evident—informing a person who takes possession of an animal about the animal’s vicious propensities allows that person to take precautionary measures to protect himself or herself and others from harm caused by that animal’s vicious propensities.
The duty to disclose:
Here, even if the defendant breached its duty to disclose the dog’s vicious propensities known to it, or “ascertainable by the exercise of reasonable care” at the time of the plaintiff’s adoption…by failing to inform the plaintiff that the dog had previously bitten someone in the face, any such breach was not a proximate cause of the plaintiff’s injuries. The dog’s displays of aggressive behavior during the three and a half months the plaintiff owned it, and the fact that it first bit the plaintiff on July 13, 2012, gave the plaintiff sufficient knowledge of the dog’s vicious propensities before she was bitten again on September 3, 2012[.]
And applied the law to the facts:
In opposition, the plaintiff failed to raise a triable issue of fact. We reject the plaintiff’s contention that her knowledge of the dog’s vicious propensities was limited only to situations triggered by the dog’s possessiveness regarding food. Rather, her knowledge of the dog’s vicious propensities, regardless of the dog’s motivation for exhibiting them, would have exposed her to strict liability to third-parties for any harm caused as a result of those propensities…Similarly, once she knew of the dog’s vicious propensities, the plaintiff was in the best position to take precautionary measures to prevent harm to herself and others. Since the plaintiff became independently aware of the dog’s vicious propensities, the defendant’s alleged failure to apprise her of those vicious propensities was not a proximate cause of her injuries[.]
Mitchell v. Snider, 2016 NY Slip Op 50877(U) [Civ. Ct. N.Y. Co. March 18, 2016]
Civil Court summarized the proceedings:
[Christopher Mitchell] brought this action against his ex-girlfriend, [Madeline Snider] seeking to recover possession of a five year old male black Labrador Retriever named “Django.” Plaintiff alleged that he was the sole owner of the dog, valued at $200, and he sought to recover monetary damages in the amount of $5,055.00 for Defendant’s wrongful possession and detention of his dog. Defendant alleged that they were joint owners and counterclaimed for a judgment declaring that it is best for all concerned for Django to remain in Defendant’s sole possession.
The determination of the Court:
After a trial held before this court on February 8, 2016, where both parties testified and presented documentary evidence, this court determines that both parties were joint owners of their dog, but that it is best for all concerned for Django to remain in Defendant’s sole possession and care to the exclusion of Defendant [ ].
The applicable standard:
Prior to trial, the parties stipulated that the applicable standard is “the best for all concerned,” as set forth in Travis v Murray (Travis v Murray, 42 Misc 3d 447, 460 [Sup Ct, NY County 2013]). Notwithstanding the Stipulation of the parties, the court determines that this is the correct standard to be applied in dog possession cases.
In Travis, the court discussed the evolution of dog possession cases in New York and determined that courts should hold a limited one day hearing to consider what is “best for all concerned” when determining which party should possess a dog in a divorce proceeding[.]
The precedents:
In non-matrimonial cases New York courts recognize that replevin is the remedy to recover possession of a dog when a party refuses to return it…Traditionally, courts considered which party has the superior possessory right to the dog, rather than his or her respective abilities to care for the dog or the emotional ties to the dog…However, over the years, courts began to recognize that, unlike other types of property, companion animals are treated as a special category of property, which is consistent with underlying public policy to protect the welfare of animals[.]
The factors to be considered:
In the instant matter, the court will consider which party should have sole possession of the dog, whether the losing party should be awarded damages, and if so, how such damages should be calculated. As an initial matter, the court will consider who owns the dog or whether the parties are co-owners. This analysis should include who paid for the dog, whether it was intended as a gift to another, whose name was listed as the owner of the dog on ownership-related documents, like vaccination, license, registration and veterinary records, who bore the primary responsibility for caring for the dog and who held themselves out as the owner through his or her words and actions.
Although important, ownership is just one factor to consider when determining who should possess the dog based on the best for all concerned analysis. The court must also consider intangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving and being loved in the care of one party or the other…Additionally, the court considers who is in the best position to meet the dog’s daily physical and emotional needs based on a healthy, active lifestyle, time constraints, type of home and yard, emotional bond, safety concerns, financial ability, opportunities to socialize with other dogs, access to dog-friendly parks and outdoor activities and access to veterinary care and pet stores. The court will also consider each party’s ability to care for the dog, including, but not necessarily limited to, feeding, watering, walking, grooming, bathing petting, playing, training, taking the dog to the veterinarian and engaging in other recreational and dog-friendly activities.
Application of the law to the facts:
During the trial, both Plaintiff and Defendant testified. It is undisputed that Plaintiff and Defendant met in Guatemala in the summer of 2008 while they were volunteering for a nonprofit organization and they began dating in 2009 when Defendant returned to Guatemala after graduating from College. They began living together in early 2010 and bought a ten week old black male puppy Labrador Retriever named Django in April, 2011. Both parties were listed as owners on the initial pet information card and vaccination record. They both researched what breed to get, whether to adopt or buy, which breeder, trainer and veterinarian to use, how to transport the dog to the United States, how to tend to most of the dog’s needs and shared all major decisions about their dog.
While living in Guatemala, Plaintiff earned a stipend as the volunteer coordinator and had flexible hours, while Defendant worked as an unpaid volunteer teacher. It was difficult for Defendant to find coverage to leave class during school hours. Therefore, Plaintiff spent more time with the dog during daytime hours and he paid for almost all of the dog’s expenses. Plaintiff paid $160 to purchase the dog, he paid for the veterinary visits and for most of the food, toys and supplies. Although both parties fed, watered, trained, groomed, bathed, walked, played and engaged in recreational activities with the dog, Plaintiff handled more of the dog’s needs, since he spent more time with the dog. Defendant handled other household responsibilities.
In June, 2011, the parties moved to New York so Plaintiff could attend graduate school and Defendant could attend law school. Plaintiff paid to transport the dog to New York. In August, 2011, the parties and the dog moved into a one bedroom apartment in Manhattan, where Defendant still resides. Again, both parties cared for, fed, watered, groomed, walked and played with the dog, but Plaintiff spent more time with the dog and purchased most of the food, supplies and toys for the dog.
Defendant explained that Plaintiff paid for most of the dog’s expenses because they preferred a particular brand of dog food and it was more convenient and economical for Plaintiff to buy the food in bulk and to buy supplies at a store near his school where he could carry the items home in a compartment attached to his bicycle. Defendant paid for the food, toys and supplies when she purchased them from a more expensive local pet store. When the parties took an extended trip abroad, Defendant’s father and his girlfriend took care of the dog and Plaintiff left them detailed instructions on how to do so.
There was a noteworthy incident when Defendant alleged that Plaintiff violently kicked the dog in the ribs, causing the dog to squeal and causing Plaintiff and Defendant to argue. Plaintiff argued that he merely pushed the dog away to prevent him from eating bones on the ground. Additionally, Plaintiff purchased a dog trailer for his bicycle so he could ride with the dog, but the dog appeared to hate being confined and broke the trailer.
In May, 2013, Plaintiff ended his four year relationship with Defendant, moved to Brooklyn and began seeing his current partner that summer. Defendant was extremely upset about the break up and initially consented to permit Plaintiff to take the dog with him. Shortly thereafter, Defendant asked to see the dog and Plaintiff complied. The parties divided up their property, including the dog’s supplies and toys, and they arranged to alternate time caring for the dog between each other’s homes every two to three weeks. Each party was responsible for paying for the dog’s expenses while the dog was within his or her care. However, the dog continued to vacation with Defendant and her family.
This arrangement worked well for about a year, until Plaintiff decided to move across country and it was no longer feasible for the parties to continue their shared care arrangement. Beginning in April, 2014, Plaintiff advised Defendant that the dog appeared to exhibit signs of separation anxiety and that it would be best if the dog had one permanent home. Defendant denied observing such signs. Plaintiff also advised Defendant that he was applying to jobs out of state and thinking about moving to Portland. Defendant feared that Plaintiff would take the dog permanently because he refused to advise Defendant of when he was moving and where he was going. Over the next couple of months Plaintiff repeatedly tried to resolve their issues by convincing Defendant to let him take the dog permanently and to continue with their temporary shared arrangement, but in June, 2014, Defendant refused to let Plaintiff take the dog. At the end of June, 2014, Plaintiff moved to Seattle with his partner. Since Defendant had refused to let him see the dog since June, he filed the law suit in July, 2014.
The testimony at trial:
Plaintiff testified in substance that it would be the best for all concerned if the dog lived with him because he lives in a large house with a yard in a dog-friendly Seattle suburban community with a lot of open spaces, parks, trails and dog parks. He and his partner have a lot of time to share with the dog and the dog would have a lot of opportunity to socialize with other dogs and prosper. Defendant lives in a small apartment, works long hours and he implied that she has to send the dog to a doggy daycare and dog walker because she does not have the time to adequately care for the dog on her own.
Defendant testified in substance that it would be the best for all concerned for the dog to stay with her because for the past 20 months, she has been solely responsible for the dog’s care and he appears to be extremely happy and healthy. Defendant works reasonable hours at a law firm which permit her to spend a lot of time with the dog during the mornings, evenings and weekends. She feeds the dog with a special diet which includes a variety of dry and freeze dried foods, warm water, vitamins, mint dental chews and she gives him daily heart worm pills and medication when needed. Defendant walks the dog in the mornings and evenings and she retained the services of a dog walker who walks the dog alone and with other dogs during weekday afternoons. She spends a lot of time outdoors with the dog on the weekends and during vacations with her family and she makes sure that the dog sees the veterinarian on a regular basis. Over the years she has developed a strong bond with the dog and he responds to her moods. Additionally, Defendant implied that Plaintiff does not love the dog as much as she does because he never asked Defendant or her family for pictures of the dog, nor sent any toys or gifts to the dog during the 1 ½ years from the time he filed the law suit until the trial.
Concluding that:
Based upon the testimony of both witnesses and evidence presented at trial, the court finds that both parties were co-owners of the dog. It is evident that both parties intended to be joint owners of the dog at all times until Plaintiff decided to leave the New York area and he realized that he might not be able to see the dog again. Until this point, both parties loved and cared for the dog together and they both developed a strong bond with the dog. Together they agreed to get the dog, select the dog, name the dog and list both of their names as owners of the dog on the initial vaccination records. Additionally, they both held themselves out to their family and friends as co-owners of the dog in emails and through their words and actions.
It is clear that in this case the records pertaining to ownership are not indicative of which party actually owns the dog. Plaintiff listed himself as owner when he set up accounts with the veterinarian and pet store, when he got a dog license and when he took the dog to get groomed, microchipped and neutered. Similarly, Defendant listed herself as owner when she renewed the dog license and when she set up an account with a doggy daycare and dog walking service.
Although the court credits the vast majority of Plaintiff’s testimony, it finds Defendant’s testimony to be more credible and persuasive regarding issues in dispute based on the totality of the evidence. For example, the parties disagreed on whose idea it was to get a dog and who did the initial research to find a breeder, neutering service, veterinarian and to determine the procedures necessary to transport the dog to the United States. Plaintiff testified that it was his idea to get a dog, but Defendant demonstrated that she sent Defendant several emails with photographs of puppies begging him to agree to let them get a dog. Similarly, Plaintiff testified that it was his dog and that he was the one who documented all of the important information pertaining to the dog. However, Defendant introduced several emails in which Plaintiff indicated that the dog belonged to both of them and that Plaintiff’s purported notes about his research were predominantly based on previous emails that Defendant sent to him detailing her internet research and conversations that she had with others.
Additionally, the timing and nature of some of Plaintiff’s actions may have been motivated more to harass Defendant and strengthen his court case, than to show concern for the dog’s well-being. For example, although the dog resided in New York City for almost three years, Plaintiff registered the dog in his name the day after he met with Defendant and they argued about Plaintiff taking the dog permanently. Additionally, Plaintiff tried to meet with Defendant to discuss the dog having a permanent home when he knew Defendant was taking her law school final examinations. Plaintiff threatened Defendant’s future career by warning her that if she did not give him the dog by a deadline which was close to the bar examination, then he would file this lawsuit and she would have to disclose the suit to the Character and Fitness Committee. Additionally, Plaintiff served Defendant with the summons and complaint just days before she was going to take the bar examination. Finally, although Plaintiff claimed to love dogs, there was no testimony that he bought another dog at any time during the 20 months since he last had Django.
Furthermore, Defendant arranged for emergency contingencies and listed Plaintiff as an emergency contact with the doggy daycare and dog walker and she tried numerous times to give Plaintiff copies of the dog’s health records in case of emergency. However, Plaintiff never listed Defendant’s name as an emergency contact on any of the records and even though his partner cared for the dog alone at times, Plaintiff never provided Defendant’s contact information to his partner, nor did he provide his contact information to Defendant in case of emergency. Also, since Plaintiff repeatedly refused to advise Defendant when he was moving or where he was going, particularly since Defendant was so thoughtful and meticulous about all important events in his life, Defendant’s fears that Plaintiff would take the dog away from her and that she would have no way to find them were reasonable and understandable.
Based on the totality of the evidence, the court finds that it is best for all concerned for Defendant to retain sole possession of Django. Django has lived at the same location with Defendant without incident for 4 ½ years, except during the year when the parties alternated caring for him. Django has thrived and prospered without Plaintiff in his life for almost two years. To suddenly uproot Django and send him across the country to live with Plaintiff would disrupt the dog’s daily routine, healthy and energetic lifestyle and loving and happy home. The current environment appears to enhance the chances of both Django and Defendant living a long and prosperous life together.
It is unreasonable for Plaintiff to expect to prevail under these circumstances when it was primarily his choices which led to Defendant retaining sole possession of Django. It was Plaintiff who decided to break up with Defendant and move out of their apartment. It was Plaintiff who decided to move across country and make it virtually impossible to continue their agreed upon alternating care arrangement. Additionally, it was Plaintiff who withheld the details of his move. Defendant and Django appear to have moved on with their lives and they both seem to be prospering with each other’s affection and companionship.
Holding as to damages that:
[S]ince the parties were co-owners of Django at the time Plaintiff paid for Django’s expenses, he is not entitled to reimbursement of half of his costs since the monies were spent for the care, enjoyment and love for a shared companion pet who became an intricate part of the parties’ familial relationship. Even if Plaintiff was entitled to recover damages, there was no evidence presented at trial to assist the court in calculating Django’s appropriate market value. Unlike other property which the parties distributed upon their break up, Django holds a special place in their hearts. Since the court cannot consider Django’s sentimental value, it is extremely difficult, if not impossible, for the court to adequately compensate Plaintiff for his loss. Although Plaintiff paid $160 for Django, it was when he was a ten week old puppy in Guatemala and he is now five years old living in New York City. We can assume that a puppy from a breeder in New York City would cost much more than a puppy from a breeder in Guatemala, however a five year old dog would cost much less than a puppy.
Here, Django will remain with Defendant and, even though Plaintiff bore the majority of expenses while the parties resided together, such expenses were an expression of the parties’ mutual love, affection and desire to care for their shared pet. As such, Plaintiff is not entitled to reimbursement for any of his costs and no money is awarded to Plaintiff.
Nero v. Fiore, 2016 NY Slip Op 30332(U) [Sup. Ct. Suff. Co. February 25, 2016]
Supreme Court summarized the facts:
In his application [for a replevin of a Doberman Pincher dog], plaintiff alleges that he and the defendant purchased the dog in June of 2013. By way of background, the plaintiff is apparently very involved in training protection and working dogs and is also very involved in competitions relating to “Protection-Sport” dogs. The plaintiff has several accreditations for his work in this area and is apparently well known in the field and is the head trainer/owner of All Stars Working Dogs, a club that is within the Protection Sport Association . . . , an association of people and clubs involved in protection sport dogs. According to the plaintiff, PSA has established levels for judging the acumen and obedience of dogs and provides accreditation for dogs that reach certain levels, level 3 being the highest. Plaintiff asserts that working dogs having a PSA level 3 accreditation are sold for between $20,000.00 and $80,000.00. Based upon his purported stellar reputation in this field, plaintiff asserts that he is able to acquire superior bred puppies for training with the hope that the dogs will reach a PSA level 3 “titling” which would qualify a dog to be sold as a working dog to law enforcement or to the military.
According to the plaintiff he met the defendant (a veterinarian) at an informal PSA event in 2011. Thereafter, he alleges that they became romantically involved and that they began “cohabitating” despite maintaining their separate residences. Plaintiff’s complaint alleges that thereafter “[o]n or about May, 2013, the plaintiff and defendant decided to acquire a Doberman puppy which the Plaintiff would train and title.” Thereafter, in June 2013, using his good will and excellent reputation as a PSA trainer, he arranged for the purchase of the Doberman Pincher puppy through Daryl H. Young, one of the owners of America’s Best Dog Trainers which is located in California and is widely known for breeding quality dogs that are appropriate for PSA training and competition. Plaintiff alleges that the defendant paid for the puppy using her personal check but that he intended to pay her back. Plaintiff also alleges that he paid for the puppy’s transportation from California to New York. Shortly after receiving delivery of the dog on June 21, 2013 and determining that its demeanor was appropriate for protection sport training, on July 16, 2013 plaintiff claims that he entered into a Purchase Contract for the puppy. A copy of the contract that the plaintiff allegedly entered into states, in pertinent part, that “[b]uyer agrees that he/she is not acting as an agent in the purchase of this Doberman and that the Buyer will not sell this Doberman or it’s (sic) progeny to any agent…(Should the aforementioned happen to take place. DARYL YOUNG shall receive $10,000.00 in damages).” (emphasis supplied in original). Thereafter, sometime in late 2015, the parties ended their romantic relationship and plaintiff sought return of the puppy to his possession which he asserts that the defendant refused. According to the Plaintiff, based upon the defendant’s refusal to return the puppy to him, he is in violation of his contract with the sellers of the puppy. He further alleges that he is being sued by those breeders in California small claims court based upon his violation of the contract. In support of his assertion that he was expected to be the dog’s purchaser (and owner) he submits a letter from the dog’s breeders indicating that they sold the puppy to the plaintiff for PSA training and that they reduced the purchase price such with the understanding that if the puppy became titled through plaintiff’s training, their other puppies would command a higher price.
Defendant’s contentions:
Initially, even though she strenuously asserts that the puppy was always intended to be hers alone, she points out that the plaintiff’s admits in his complaint that the dog was never intended to be solely owned by him. Rather, she claims that plaintiff was assisting her in her quest to acquire another dog so that she could expand her participation in protection sport training. In further support of her application, the defendant acknowledges that she was romantically involved with the plaintiff but asserts that at no time did the two cohabitate to the degree of sharing bills or house keys. She agrees that plaintiff was going to train the puppy but states that it was always intended that she would be the sole owner of the dog and that the dog has always resided with her. Further, she provides evidentiary proof that she paid not only paid the purchase price of the puppy ($1,500.00 rather than the $1,200.00 plaintiff claims was the purchase price), but that she reimbursed the defendant for the cost of transportation by check (which was negotiated by the plaintiff despite his assertions to the contrary). In addition, defendant provides proof that she paid for all veterinary care for the puppy; that the microchip she had implanted in the dog is also registered to her; that she had the puppy registered to her with the American Kennel Club (AKC) and licensed to her in the Town of Islip where she resides. Moreover, defendant provides proof that the plaintiff was aware that she was doing these things and consented to them. She maintains that she was completely unaware that the plaintiff had signed any contract with the breeder/seller of the puppy. In fact, she asserts that it was only after she and the plaintiff had ended their relationship that she learned about the alleged written agreement between the breeder/seller and the plaintiff. In support of this assertion, the plaintiff provides copies of email conversations she had with Daryl Young in or around late September 2015. Defendant also provides copies of PSA competition registration papers which show defendant registered as the owner with the plaintiff acting as the dog’s handler at a dog competition which registration papers were allegedly completed by the plaintiff. The defendant also provides copies of email, text messaging and photos of on line posts which tend to show that the plaintiff acknowledged to others that she was the owner of the dog. Finally, defendant’s reply papers contain proof that the California small claims action commenced against the plaintiff by the dog’s breeders has been dismissed.
Plaintiff’s response:
[P]laintiff acknowledges that the defendant paid for the puppy with her personal check, but claims that this was done as a convenience because he was at her house when he learned that one of the breeders was nearby and that he could drop off a check. Rather than go back to his house first, he used defendant’s check. He also states that he attempted to reimburse her for the cost, but that she refused (although there is nothing submitted to substantiate this claim). In addition, he attempts to clarify his use of the word “acquire” when he referred to the allegation in his complaint in which it alleged that he and the defendant decided to “acquire” a puppy. Plaintiff now asserts that when he used the word “acquire” he only referred to the defendant because they were cohabitating and that he needed to be sure that the new puppy would not disrupt the defendant’s existing dog or the defendant, and that the use of the word is not indicative of joint ownership. In addition, plaintiff claims that he never negotiated the check given to him by the defendant as reimbursement for the cost of the transportation of the puppy. He further claims that the defendant agreed to aid him in registering the puppy with the AKC but that she was supposed to list him as the owner rather than her. He also asserts that the AKC documents arc not determinative of ownership and that the defendant’s payment of the puppy’s veterinary and other expenses would have been normal since they were cohabitating.
The applicable law:
Dogs are considered chattel in New York State…As such, the most that can be recovered in the event the dog is lost as a result of someone’s negligence is the dog’s fair market value . . . In addition, the remedy to recover a dog when someone refuses to return it is an action for replevin…The standard required to be awarded possession of a chattel in an action for replevin is having a “superior possessory right in the chattel”…Accordingly, the ability to care for, or in this case, train a dog, is not ultimately determinative of ownership…In addition, in an action for replevin for a pet, the court can consider what is “best for all concerned”[.]
Denied plaintiff’s application for immediate return of the dog:
The plaintiff’s application seeking immediate return of the chattel must be denied as a matter of law. A review of the papers submitted fail to establish that he has a superior possessory right to the chattel…Clearly, based upon the allegations in the complaint alone, which arc internally inconsistent, the plaintiff is not entitled to the return of the chattel. Specifically, in one paragraph he alleges that he and the defendant “decided to acquire a Doberman puppy” and then several paragraphs later alleges that he is the “sole owner” of the dog. Moreover, plaintiff has failed to produce a single document that establishes that he is the dog’s sole owner and has a superior right to possession of the chattel[.]
And addressed the several causes of action:
Turning to the defendant’s motion to dismiss the action pursuant to CPLR 321 1 (a)(7), the challenged pleading is to be construed liberally…Accepting the facts alleged as true, and according the plaintiff the benefit of every possible favorable inference, the court must determine only whether the facts alleged fit within any cognizable legal theory . . . However, “[t]o state a cause of action for replevin, a plaintiff must allege that he or she owns specified property, or is lawfully entitled to possess it, and that the defendant has unlawfully withheld the property from the plaintiff”[.]
Here, the plaintiff’s First Cause of Action in the complaint admits: “the Plaintiff and the Defendant decided to acquire a Doberman puppy” and that “[d]efendant wrote a check to either Daryl H. Young, or his partner, Ishmael Calvin Ross…for payment upon the Doberman puppy.” (emphasis added). This allegation alone warrants the dismissal of the first cause of action in the complaint since it is completely inconsistent with plaintiffs claim that he is the owner of the puppy such that he would be entitled to possession, much less “immediate possession” as he claims. Plaintiff has failed to produce any document which would establish that he is the owner of the puppy and therefore having a superior right to possession such that the defendant’s continued possession constitutes conversion. Conversely, the defendant has provided proof that she has paid for, registered, licensed and cared for the puppy since it was acquired. The fact that the plaintiff has trained the dog is not determinative of ownership…Accordingly, since the plaintiff has failed to persuasively state a cause of action for conversion or replevin, his first cause of action must be dismissed.
The Plaintiffs second cause of action must likewise be dismissed. In his complaint the plaintiff asserts that the defendant has “tortuously interfered with contractual relations of the plaintiff and his customers, and has wrongfully attempted to frustrate additional or new business inuring to plaintiffs economic benefit”. However, other than that conclusory allegations, the complaint fails to specifically allege the specific acts of the defendant that caused him the alleged damages. Conclusory allegations are insufficient to state a cause of action for tortious interference with prospective business relations…The plaintiffs second cause of action also appears to allege that defendant has committed “fraud”. It is axiomatic that claims for fraud must be specifically plead . . . “A fraud claim must be pleaded with particularity pursuant to CPLR 3016(b). The purpose of the statute is to give adequate notice and “is not to be interpreted so strictly as to prevent an otherwise valid cause of action”. A reading of the complaint shows that the plaintiff has not alleged a single detail of the alleged fraud that he claims the defendant has committed.
Concluding that:
Although it is unnecessary to reach the defendant’s motion to dismiss the complaint based upon documentary evidence pursuant to CPLR 3 21 1 (a)( I), a review of that evidence appears to establish that defendant is entitled to dismissal of the action on those ground as well since she has submitted sufficient documentary evidence to establish that she is the owner of the dog. The documentary evidence is not disputed. Specifically, it is undisputed that the defendant paid the $1,500.00 purchase price for the puppy and cost of its transportation from California to New York. It is further undisputed that the puppy has resided with the defendant and that she registered it with the AKC and licensed it in the Town of Islip. Accordingly, the defendant is entitled to dismissal of the first cause of action in the complaint on those grounds as well. Indeed, and purely as a parenthetical, contrasting the plaintiffs allegations and the documentary evidence reveals disparities whose flagrance is not appealing.
Matter of James F. Boyle [Surr. Ct. Na. Co. December 23, 2015]
The Surrogate summarized the facts:
Shortly after the death of the decedent, property belonging to the estate, an AKC registered Irish Terrier dog named Darby was removed without permission from the decedent’s home and placed in the possession of Patrick Donoghue and Patricia Donoghue (the respondents), who continue to have possession of the dog. Although Michael has made repeated demands for the return of the dog, respondents have refused to return the dog to Michael [Boyle].
The submissions in opposition to the petition:
Counsel for the respondents filed a verified answer and an affirmation in opposition on November 19, 2015, arguing that Michael requires assistance with his own personal needs, property and financial affairs. The affirmation recites that the dog had been purchased by the decedent shortly before his death. On the day of decedent’s funeral a cousin found the dog barricaded into the kitchen of the apartment that had been shared by the decedent and Michael. The dog was allegedly alone and covered in urine and feces. The cousin removed the dog and shortly thereafter the respondents offered to care for the dog. Respondents claim that they spent approximately $3,310.00 for the dog’s medical care, food and equipment, in addition to training and rehabilitating the dog. Counsel for the respondents asserts that only four months after taking possession of the dog did they learn that Michael claimed the dog.
Counsel for the respondents argues that Michael’s relinquishment of the dog to his cousin should be considered a gift to the respondents, who took the dog from Michael’s cousin. She further argues the court must consider the best interests of the dog as well as the best interests of Michael. Counsel asserts that directing the return of the dog to Michael would unjustly enrich Michael and would also return the dog to a potentially unsafe environment. Finally, counsel suggests that the court may wish to determine whether it would be appropriate to appoint a court evaluator to determine whether Michael can manage his affairs and act as administrator.
The applicable law:
Under current New York law a court cannot predicate a decision on what is best for a dog…”The correct law is the law of property and this court will determine and award possession of [a dog] according to that law and no other”…Further, contrary to the arguments made by respondents’ counsel, the elements of a gift are not present, and there has been no unjust enrichment of Michael, whose counsel asserts that he sought the return of the dog almost immediately after his cousin removed the dog from his home.
Concluding that:
Even if the court could consider the welfare of the dog in deciding this case, the November 2, 2015 written report of Marianne Kehoe, Chairperson of the Rescue Committee of the Irish Terrier Club of New York, regarding the advisability of returning the dog to Michael, provides overwhelming assurance that Michael has the means and inclination to give the dog a proper, safe and loving home. The report is based upon the visit of Marianne Kehoe to Michael’s home and her meeting with Michael, his attorney, his attorney-in-fact, two friends, Michael’s housekeeper and the dog walker employed by Michael to walk the dog two to three times daily, once the dog is returned to Michael.
Blumenthal v. Bronx Equestrian Ctr., Inc., 2016 NY Slip Op 01545 [App. Div. 1st Dept. March 3, 2016]
The Appellate Division summarily concluded, as to the equestrian center, that:
Defendants’ motion for summary judgment should have been granted in this action where plaintiff Lynette Blumenthal was injured when she was thrown from a horse during a recreational ride at the stable operated by defendant the Bronx Equestrian Center…The risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding…There is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks…To the extent plaintiffs’ expert opined otherwise, such opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact[.]
And as to the City:
Defendant City of New York, which owned and operated the park in which plaintiff rode, is also entitled to dismissal, as there were no defects in the bridle path contributing to the accident. Plaintiff’s theory that the City owed her a duty based upon the licensing agreement it issued to the stable is unavailing since the City had no involvement with the operation of the stable, and the agreement contained no provision that would make plaintiff a third-party beneficiary of it[.]
Finch v. Steve Cardell Agency, 2016 NY Slip Op 01231 [App. Div. 3d Dept. February 18, 2016]
The Appellate Division described the relationship between the parties:
Plaintiff is a self-employed logger who is also engaged in the business of putting on rodeos. In connection with this business, plaintiff owns bulls and other animals, as well as trucks and trailers. In approximately 2006, plaintiff began obtaining homeowners’ insurance and liability and automobile coverage for his business operations from defendant Steve Cardell Agency a New York insurance agency of which Steven I. Cardell…is president.
Plaintiff obtained liability insurance for rodeos by contacting defendant before each show. Defendant would then procure coverage for the event and provide plaintiff with an insurance certificate. In August 2012, plaintiff contacted defendant to obtain coverage for an upcoming rodeo in Pennsylvania. The transaction was handled by an office assistant. The carrier that had previously provided plaintiff’s rodeo insurance declined to cover the event, apparently due to its location in Pennsylvania, and the assistant instead found what she believed to be equivalent coverage issued by a different carrier, Atlantic Casualty Insurance Company [.]
The operative facts:
At the conclusion of the Pennsylvania rodeo, four bulls escaped from a group that was being moved from a holding pen through a system of gates immediately prior to loading into plaintiff’s trailer. Several bystanders were injured before the animals were recaptured, and lawsuits were filed against plaintiff as a result. When plaintiff advised defendant of the incident, Cardell reviewed the ACIC policy and discovered that it contained an exclusion for injuries or damage caused by animals. Thereafter, ACIC declined coverage, relying on the animal exclusion and also on a policy exclusion for losses arising out of the use of an “auto” . . . . , which the policy defined to include loading and unloading operations. When plaintiff sought coverage under the automobile insurance policy that defendant had furnished through a different company, that carrier also denied coverage on the ground that the trailer into which the bulls were being loaded was not listed in the policy’s schedule of covered vehicles. Although plaintiff’s trucks were listed and covered, on this occasion he had used a borrowed truck owned by defendants Mark Woodruff and Robin Woodruff to tow his trailer to the rodeo.
The prior proceedings:
Plaintiff commenced this insurance malpractice action alleging that defendant was negligent in procuring a rodeo insurance policy with an animal exclusion. Following joinder of issue, plaintiff moved for summary judgment; after an agreed-upon adjournment for discovery, defendant cross-moved for summary judgment dismissing the complaint. During the pendency of the motions, plaintiff amended his complaint to add a cause of action against the Woodruffs, and a new cause of action that amplified his insurance malpractice claim against defendant. Plaintiff then argued that the amended complaint rendered defendant’s cross motion premature and unripe for determination. Supreme Court rejected this assertion, denied plaintiff’s motion and granted defendant’s cross motion for summary judgment dismissing the complaint against defendant, on the ground that the animal exclusion was not the proximate cause of plaintiff’s loss [.]
The applicable law:
An insurance agent has a common-law duty to provide requested coverage within a reasonable time and may be held liable for negligence or breach of contract when a client establishes that a specific request was made for coverage that was not provided in the policy…A breach of this duty will give rise to liability if it is shown to be the proximate cause of a client’s loss…Here, Supreme Court determined that defendant’s potential negligence was not the proximate cause of plaintiff’s loss, as plaintiff’s claim would have been denied, in any event, based upon the auto exclusion. However, this failed to address the allegations set forth within the amended complaint. In this pleading, plaintiff alleged that defendant negligently failed to advise him of the “gap in coverage” created by the auto exclusion, and that this failure resulted in his lack of coverage.
Although an insurance agent’s common-law duty to his or her clients does not include a continuing duty to advise the clients on appropriate coverage or to recommend additional coverage that the clients did not request…an agent may be liable for failing to provide appropriate advice in circumstances where there is a special relationship.
The “special relationship” doctrine:
As pertinent here, such a relationship may arise when “there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on”…The question whether a special relationship exists between an insurance agent and a client giving rise to a duty to guide and advise the client is a factual determination that “is governed by the particular relationship between the parties and is best determined on a case-by-case basis”…Here, plaintiff testified that he had purchased his business and personal insurance from defendant for at least six years, that he knew little about insurance and that he relied upon defendant to obtain the appropriate coverage for his rodeo operations. He stated that he had never seen any of the rodeo insurance policies that defendant procured on his behalf, that insurance certificates were the only documents ever provided to him, and that “with [Cardell] being my agent for years, I took that as he was representing me and making sure that I was covered.” As for the failure to include the trailer in the schedule of covered vehicles in plaintiff’s automobile insurance policy—which defendant had also procured—plaintiff stated that he understood that his trailers were covered by his truck insurance and that he was never advised that his trailers should be separately listed as covered vehicles until after the Pennsylvania incident.
Cardell’s testimony:
Cardell testified that defendant had been providing plaintiff with homeowners’ insurance, private automobile insurance and commercial truck insurance since 2006 and had been procuring general liability insurance coverage for plaintiff’s rodeo operations for several years before the Pennsylvania incident. He testified that after the previous carrier declined coverage, the general marketing agency that defendant worked with offered the ACIC policy as a substitute. Cardell acknowledged that the presence of the animal exclusion in the ACIC policy was an error, stating that the assistant “overlooked” the exclusion, that Cardell did not discover it until after the incident, and that an employee of the marketing agency was later fired for issuing the policy with the animal exclusion. Nothing in Cardell’s testimony contradicted plaintiff’s allegations that he relied upon defendant to procure adequate coverage, or that defendant had not advised him of any need for additional protection because of the auto exclusion.
The “auto exclusion”:
As to application of the auto exclusion, defendant correctly asserts that clauses in automobile liability insurance policies defining the use of an automobile to include loading and unloading are broadly construed to include “the complete operation”…Critically, however, the language at issue here is not a coverage provision in an automobile liability policy, but an exclusion from coverage in a general liability insurance policy. It is well established that such exclusions are subject to a strict and narrow construction and can be “enforced only when the insurer establishes that the pertinent language is ‘subject to no other reasonable interpretation’”…The record here contains no specific information as to the particular circumstances in which plaintiff’s bulls caused injuries after their escape, or how closely related those circumstances were to the operation of transferring the bulls from the holding pen to the trailer. Accordingly, the record fails to establish as a matter of law that ACIC would necessarily be able to demonstrate that the injuries fall within the scope of the auto exclusion.
The questions of fact presented:
The question whether negligence on the part of an insurance agent or broker proximately caused a client’s losses “should generally be resolved by the factfinder”…In our view, the evidence raises triable issues of fact as to whether plaintiff and defendant had a special relationship and, if so, whether defendant proximately caused plaintiff’s loss by negligently failing to advise and guide him in obtaining adequate insurance coverage for all aspects of his rodeo operations, including his trailer [ ].
Astarita v. Croton Animal Hosp., 2016 NY Slip Op 31731(U) [City Ct., Peekskill September 19, 2016]
In a Decision after a Small Claims Court bench trial, the Court summarized plaintiff’s direct case testimony:
On April 22, 2016, the Plaintiff took her puppy, Wiebka, to the Defendant for first-time vaccinations. The Defendant weighed Wiebka, conducted a new puppy examination, administered DA2PP and Rabies shots, and performed a fecal analysis . . . The Defendant emailed the Plaintiff and requested that she return to the animal hospital on May 22, 2016 for the administration of DA2PP. The Plaintiff informed the Defendant that she could not return on May 22, 2016, so the Defendant gave the Plaintiff an appointment for May 27, 2016 at which time the Defendant weighed Wiebka and administered DA2P and Parvo vaccines. After Wiebka arrived home, she started vomiting during the night and refused to eat or drink.
The following day, May 28, 2016, the Plaintiff informed the Defendant of Wiebka’s condition and then brought her to the animal hospital for examination. The Defendant conducted a medical progress exam, injected Wiebka with an anti-emetic, and then provided the Plaintiff with dog food…Several hours after getting home, Wiebka started to vomit the dog food and experience bouts of severe diarrhea.
The following day, Sunday, May 29, 2016, the Plaintiff took Wiebka to the Veterinary Emergency Group in White Plains where she was administered fluids and examined. On Monday, May 30, 2016, Plaintiff was informed that Wiebka contracted the parvovirus. On May 31, 2016, the Plaintiff transported Wiebka to the Katonah Bedford Veterinary Center for further treatment…Wiebka eventually recovered from the parvovirus. Plaintiff stated the incubation period was 2 to 7 days. Lastly, Plaintiff testified that the Defendant never informed her about the dangers of the parvovirus; that Wiebka could contract the parvovirus if she did not receive her vaccinations timely; and that the incubation period for the onset of the parvovirus was 2 to 14 days.
Plaintiff’s testimony upon cross examination:
On cross examination, the Plaintiff testified that she purchased Wiebka from a private owner for $500.00; she conceded that she had no documentation of Wiebka’s purchase. Plaintiff also stated that she canceled the scheduled appointment for Wiebka’s follow up vaccinations set for May 22, 2016. Plaintiff was shown the Pet Guarantee…from the manufacturer of the anti-parvovirus vaccine administered to Wiebka and asked if that document stated that the manufacturer would consider the vaccination of Wiebka in accordance with the guidelines set forth by the American Animal Hospital Association (AAHA) sufficient. Plaintiff stated that the Pet Guarantee did state that but that the Defendant nevertheless should have followed the guidelines set forth in the instructions of the manufacturer which stated that Wiebka should have been vaccinated no later than 4 weeks from the initial vaccination in order to provide immunity to the parvovirus…Plaintiff referred to language in the AAHA which stated that these rules are not intended to represent vaccination standards for all dogs…Plaintiff further stated that since Wiebka received her second round of antiparvovirus more than 4 weeks after the initial vaccination, the Defendant failed to comply with the manufacturer’s guidelines thereby causing Wiebka to become susceptible to the parvovirus.
Defendant’s direct case testimony:
Defendant has been a veterinary for 27 years; he worked at Croton Animal Hospital since 1994 and then became the owner in 2000. During the first visit on April 22, 2016, the Defendant advised Plaintiff regarding the care and feeding of Wiebka, vaccine schedules, and the core and noncore vaccines. Defendant stated that Wiebka was vaccinated in accordance with the schedule set forth in the AAHA guidelines, which set forth, among other information, the vaccine and booster interval schedules…Defendant further stated that the manufacturer of the anti-parvovirus vaccination administered to Wiebka stated that if the administration of the vaccination is done in accordance with the AAHA guidelines, the manufacturer would honor its guarantee and reimburse standard and reasonable diagnostic and treatment costs of the owner of a dog that subsequently contracts the parvovirus. In other words, Defendant was stating that if the manufacturer considered the AAHA guidelines sufficient, then Defendant’s compliance with those guidelines should be considered sufficient even though the Defendant did not follow the manufacturer’s guidelines.
Defendant stated that the incubation period for parvovirus is 2 to 14 days from the onset of symptoms. Lastly, the Defendant stated if a puppy gets two vaccinations and does not contract parvovirus within 2 weeks after the second vaccination, the puppy is presumed to have developed adequate antibodies to prevent contracting the parvovirus.
Defendant’s testimony upon cross-examination:
On cross examination, the Defendant conceded that Wiebka was administered her second round of vaccinations after 16 weeks even though the AAHA guidelines stated that puppies should be vaccinated every 3 to 4 weeks between the ages of 6 and 16 wks.
Defendant’s redirect examination:
The Defendant testified that he followed the vaccine schedule set forth in the AAHA guidelines, that Wiebka’s vaccine was administered on the 4/22/16 and 5/27/16, and that the vaccine did not cause Wiebka to contract the parvovirus.
The closing arguments:
Defendant argued that the Plaintiff failed to prove that he deviated from good and accepted veterinary practice which caused injury to Wiebka. Further, the Defendant argued that the measure of the Plaintiff’s damages should be the fair market value of Wiebka or the cost of her treatment whichever is less.
The Plaintiff argued that the Defendant deviated from accepted veterinary practice by adhering to the AAHA guidelines for vaccination administration instead of following the anti-parvovirus directions on label as set forth by the manufacturer.
The applicable law:
In order to establish a prima facie case of veterinary malpractice, the Plaintiff is required to show that the Defendant deviated or departed from accepted veterinary practice, and that such departure was the proximate cause of the injury… As a general rule, expert testimony is necessary to establish the applicable standard of care, as well as a deviation from such standard, which resulted in injury, unless the case is one within the experience and observation of the average layperson[.]
It has been held that expert testimony may be dispensed with in a veterinary malpractice action “where the very nature of the acts complained of bespeaks improper treatment and malpractice.”[.]
The measure of damages:
Further, the proper measure of damages for injury to, or the destruction of, an animal is the amount that will compensate the owner for the loss and thus return the owner, monetarily, to the status the owner was in before the loss…In other words, where the animal has a market value, the owner will be entitled to the market value at the time of the loss or the difference in market value before and after an injury…Factors affecting the market value of an animal include the animal’s age, health, and special traits or characteristics of value…It has been held that the cost of veterinary treatment is the proper measure of damages for an injured animal[.]
Concluding that:
In the case at bar, the Plaintiff failed to proffer expert testimony to support her claim that the Defendant committed veterinary malpractice by failing to adhere to the vaccination schedule as set forth by the manufacturer on the label of the vaccine, and that said failure was the proximate cause of Wiebka contracting the parvovirus. First, Plaintiff failed to proffer expert testimony that the failure to adhere to the vaccination schedule on the manufacturer’s label deviated from accepted veterinary standards of practice[.]
The evidence at trial established that the manufacturer’s Pet Guarantee would honor any claims made by owners whose animals were vaccinated in accordance with the AAHA vaccination schedule and thereafter contracted the parvovirus. Since the manufacturer of the antiparvovirus that was administered to Wiebka stated that it would honor claims made in accordance with the AAHA vaccination schedule, the Court cannot find that the Defendant’s deviation from the manufacturer’s vaccination schedule on the label of the vaccine in favor of the AAHA vaccination schedule constituted veterinary malpractice. An expert opinion was needed to establish that the deviation was of such a nature and degree as to constitute veterinary malpractice[.]
Further, the conflicting testimony at trial was that the incubation period after infection was 2 to 7 days according to the Plaintiff, or 2 to 14 days according to the Defendant. This factual discrepancy required that Plaintiff proffer expert testimony in order to support her claim that the incubation period for the parvovirus was shorter than the period argued by the Defendant, who is, in fact, a licensed D.V.M. with 27 years of veterinary experience, and that the shorter incubation period was relevant to the issue of Wiebka’s contraction of the parvovirus.
Of critical importance in this matter is Plaintiff’s testimony that Wiebka became ill the evening of May 27, 2016 after she received her anti-parvovirus vaccination. If this Court were to accept the incubation period argument from either party, then the Court is left to wonder where or how Wiebka contracted the parvovirus. Specifically, the testimony was that the parvovirus is an infectious disease that could be contracted from an infected animal-perhaps another infected dog, or infected fecal matter. If that is true, then Wiebka could not have contracted the parvovirus from the Defendant because Wiebka contracted the parvovirus well beyond the 2 to 7 or 2 to 14-day window periods since Wiebka’s first visit with the Defendant on April 22, 2016.
It would seem probable that Wiebka was permitted to come into contact with an infected animal, infected fecal matter or an infected environment either 2 to 7 days or 2 to 14 days prior to the second visit with the Defendant on May 27, 2016. In any event, Plaintiff needed an expert who could give an expert opinion to a reasonable degree of medical certainty as whether the Defendant’s failure to vaccinate Wiebka with the anti-parvovirus within 3 to 4 weeks of the first vaccinations was the proximate cause of Wiebka’s contraction of the parvovirus…The Court is left to speculate as to whether Wiebka contracted the parvovirus because she was not vaccinated within 3 to 4 weeks of her initial vaccinations; or because, as the Defendant argued, Wiebka would not have developed immunity to the parvovirus until 2 weeks after the administration of the anti-parvovirus vaccine to her on May 27, 2016.
* * *
Based on the aforesaid and accordance with the principles of substantial justice, the Court finds that the Plaintiff failed to prove the Defendant committed veterinary malpractice by a fair preponderance of the credible evidence.
Philwold LLC v. Inergy LP, 2016 NY Slip Op 04285 [4th Dept. June 2, 2016]
The Appellate Division outlined the facts:
Plaintiff Philwold LLC is the owner of an insulated, heated building (hereinafter referred to as the tortoise house) within which its managing member, plaintiff Stuart Salenger, kept and maintained a number of tortoises. The tortoise house served as a winter residence for the tortoises. The gas fired, thermostat controlled heating system used within the tortoise house was manufactured by defendant Modine Manufacturing Company.
Plaintiffs requested defendants Inergy LP, Inergy Holdings, LP, Burnwell Gas Corporation and Inergy Propane LLC . . . to repair and service the heaters, wiring and thermostats that it had previously installed. Defendant Gary McBride, an employee of Inergy, serviced the heating system at the tortoise house and, upon inspection, determined that the old thermostats did not work due to a roach infestation. When McBride could not resolve the issue with one of the thermostats . . . he installed a new thermostat, which was manufactured by defendant Robertshaw Controls Company. The next morning, an associate of plaintiffs arrived at the tortoise house to find that the temperature in the tortoise house had risen to approximately 110 degrees as a result of the thermostat’s malfunction and that, as a further result, 23 tortoises had died and others were injured.
The prior proceedings:
[P]laintiffs commenced this action alleging, among other things, that Inergy “negligently repaired, and/or furnished and installed heaters and thermostats” within the tortoise house. Specifically, plaintiffs claimed that the thermostat installed by McBride was “defective and failed in its intended purpose[] to control the supply and degree of heat furnished” to plaintiffs’ tortoise house and that McBride negligently installed the thermostat.
The decision of the Court below:
Inergy and McBride, Robertshaw and Modine each moved for summary judgment dismissing the complaint against them. Supreme Court granted defendants’ motions for summary judgment dismissing the complaint in its entirety. In doing so, the court rejected as “illogical” the theory put forth by an expert for plaintiffs — a mechanical engineer with over 50 years of professional experience and approximately 40 years of experience teaching on that subject at the Massachusetts Institute of Technology — that the improper installation of the thermostat caused its malfunction[.]
The triable issues of fact:
Defendants failed to put forth prima facie evidence establishing that there were not material issues of fact as to whether their negligent installation of the thermostat caused its malfunction. Although defendants put forth certain evidence, including expert evidence, that supported a conclusion that the malfunction occurred as the result of the thermostat becoming infested with cockroaches, their remaining submissions raised questions of fact as to whether negligent installation caused the malfunction. Notably, defendants’ submissions established that the thermostat was designed to be mounted through the use of two screws, but McBride testified that he had actually mounted the thermostat through the use of three screws. Further evidence tended to suggest that at least one of the screws used to install the unit was of a different size than those supplied with the thermostat and designed to be used for mounting it. Further, the director of product risk engineering for the parent company of Robertshaw explained that Robertshaw supplied installers with particular screws in order to avoid impediments that could affect the operation of the thermostat. Finally, in describing the type of malfunction that would have had to occur to permit the thermostat to continue to run the heater in the manner that it did, a mechanical engineer opined that there was “some possibility that somehow a current was allowed to flow through the screws or something based on the way it was mounted.” Viewing this evidence in the light most favorable to plaintiffs, defendants’ submissions failed to eliminate all material issues of fact regarding the theory that improper installation, based on mounting the thermostat with a third unintended screw, caused the thermostat’s malfunction[.]
And the expert’s opinion:
Even if it were not the case that defendants failed to meet their prima facie burden, plaintiffs’ submissions in opposition to summary judgment raised material issues of fact requiring a trial. Namely, plaintiffs provided the expert opinion of Igor Paul, an experienced mechanical engineer and a longtime professor on that topic. Paul opined, to a reasonable degree of scientific certainty, that the improper use of a third, oversized mounting screw — in contravention of the thermostat’s intended design and instructions for installation — broke the internal mechanisms of the thermostat in a manner that allowed it to continue to run the heater despite over-temperature conditions. In reaching this conclusion, Paul relied on, among other things, thermostat models identical to the thermostat, examination of the installation point on the tortoise house wall, installation instructions and other technical materials related to the design of the thermostat, and tests related to mounting exemplars of the thermostat into the three holes present at the installation point of the thermostat. Paul’s affidavit provides a detailed explanation of how he reached his conclusion regarding the cause of the thermostat’s malfunction based on facts, inferences and reasoning. The affidavit provides a similarly detailed explanation of why Paul found defendants’ roach causation theory of malfunction implausible and why his own conclusion was consistent with McBride’s failure to discover the damage that he had caused during the installation based on the manner in which he thereafter tested the thermostat. Considering this affidavit, we find that Paul’s expert opinion is admissible evidence that raises material issues of fact as to whether defendants’ improper installation of the thermostat caused damages to plaintiffs[.]
Boland v. Riding High Dude Ranch, Inc., 2016 NY Slip Op 50455(U) [Sup. Ct. Warren Co. April 6, 2016]
The Court summarized the facts:
This action arises out of an incident occurring at the Riding High Dude Ranch, Inc. d/b/a Ridin Hy Ranch Resort . . . on June 2, 2012. The Ranch is in the business of providing trail rides of different challenges and plaintiff alleges she fell from a horse during one of these organized rides when the saddle became loose and caused her fall. On the morning of these events the plaintiff, a middle aged horseback rider with approximately ten hours of related experience over her lifetime, was assisted in mounting a horse with the intention of participating in a slow paced “beginner[s]” ride with a group of other participants. She describes testing the saddle and raising no complaints. While she, and several other riders, proceeded in a slow single file the animal in front of the plaintiff’s stopped briefly several times causing her horse to stop as well. Within fifteen minutes of the ride’s commencement, during one of these brief stops, plaintiff noticed the saddle had become loose. As her horse again began to move forward she attempted to straighten the saddle without success and fell. It is not clear from the record . . . if the saddle came off of the horse but the plaintiff certainly did.
Described the claim and defense:
Plaintiff’s narrow claim is that defendant was negligent in “failing to properly and/or adequately saddle the horse, secure the saddle and fasten and/or tighten the saddle and/or saddle equipment on the horse. The defense testimony is that plaintiff “was leaning to the right a little bit, [was] told … to scoot her butt to the left and … sit in the middle of the horse.” The defendant asserts that not sitting in the middle of a saddle can cause it to slide off to the side.
Applied GOL § 5-326:
The gravamen of this pre-trial motion is to strike the defendant’s fifth affirmative defense pertaining to a written horse rental agreement and general release which is unarguably eviscerated by GOL § 5-326, a statute which deems such writings as void as against public policy and entirely unenforceable. The opposition’s novel theory is that this unenforceable agreement’s language can still be used, perhaps with redactions, to demonstrate the plaintiff’s express awareness that saddles may loosen and riders may fall by reason thereof – that the jury should be aware of this documentary evidence that plaintiff has “inspected any and all equipment provided…and [was] satisfied with its condition.” The more common injuries associated with horseback riding are mishaps due to the sudden and unintended actions of the animals, including those actions which result in the participant being thrown or falling. That does not seem to be the facts here.
While it is well recognized that participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked[.]
Concluding that:
Assumption of a risk is predicated not upon plaintiff’s intervening act, but upon their agreement, express or implied, not to hold defendant responsible for the injury-causing act, negligent though it may have been, which resulted from plaintiff’s entering into the activity with knowledge of its danger, or under circumstances from which it could be found that they should have had such knowledge [.]
The Court is not persuaded that the release language sufficiently addresses the question of whether the plaintiff was aware that the saddle could loosen regardless of the cause for it. [however, it is not] to be inferred by this ruling that defense counsel is prohibited from attempting to adduce proof at trial of either assumption of risk or the plaintiff’s own contributory negligence – merely that there shall be no evidence related to the horse rental agreement and liability release.
Bray Realty, LLC v. Pilaj, 2016 NY Slip Op 26307 [App. T. 2d Dept. September 20, 2016]
Appellate Term reviewed an order of Civil Court dismissing the petition in a summary (holdover) proceeding. The Second Department described the procedural template:
In this holdover proceeding based on a claim that tenant had violated her lease by harboring a pet without landlord’s permission, tenant asserted that landlord had brought a prior proceeding for the same relief, which proceeding had been dismissed based on the Civil Court’s determination that the predicate notices were defective. Tenant claimed that landlord had commenced the instant proceeding more than three months after landlord had concededly become aware that tenant was harboring a pet and, thus, that the proceeding was not timely.
And the applicable law:
Where an owner or his or her agent has knowledge of a tenant’s harboring of a pet openly and notoriously in an apartment for a period of three months or more and fails to commence a summary proceeding to enforce a lease provision prohibiting such activity, the lease provision is waived[.]
Appellate Term affirmed dismissal of the summary (holdover) proceeding:
Landlord’s contention on appeal that CPLR 205 (a) tolled the operation of Administrative Code § 27-2009.1 (b) from the time of the dismissal of the prior proceeding to give landlord an additional six months to commence a new proceeding is without merit. CPLR 205 (a) has no application to Administrative Code § 27-2009.1 (b), which does not impose a statute of limitations but, rather, a waiver of a landlord’s right to enforce the no-pet clause of a lease agreement. As a result of the waiver, the cause of action for breach of the no-pet provision of the lease ceases to exist. Thus, the Administrative Code section provides a substantive qualification on the right of action, rather than a statute of limitations [.]
149th St., LLC v. Rodriguez, 2016 NY Slip Op 50146(U) [App. T.2d Dept. February 5, 2016]
Appellate Term summarized the facts and prior proceedings:
In this holdover proceeding based on a claim that tenant violated her lease by harboring a dog without landlord’s permission, tenant defends on the ground that the dog had been openly and notoriously harbored for over three months before landlord commenced the proceeding. Following a nonjury trial, the Civil Court, expressly crediting the testimony of tenant’s witnesses and discrediting that of landlord’s witnesses, dismissed the petition.
The applicable law:
Where a landlord or the landlord’s agent has knowledge of a tenant’s harboring of a pet openly and notoriously in an apartment for a period of three months or more and fails to commence a summary proceeding to enforce a lease provision prohibiting such activity, the lease provision is waived…The knowledge of the landlord’s agents, including building employees, will be imputed to the landlord where the employees are shown to be aware of the presence of a pet[.]
Concluding that:
Upon a review of the record, we find that there is ample support for the Civil Court’s determination that tenant established by a preponderance of the evidence that the dog was openly and notoriously harbored for a period well exceeding three months, which evidence included testimony showing that the dog was walked through the public hallway and outside the building twice daily, several visits by building employees to perform repairs in tenant’s apartment, and conversations between tenant’s family members and the building’s superintendent regarding the dog.
Lessons learned: Pets can be an enduring source of comfort and joy; however, pets can also be a fertile and prolific source of personal disputes and endless litigation.